Executive authority could end Don’t Ask Don’t Tell

by on February 6, 2009  •  In Military

Following is a guest post by Stephanie Farrior (VT Law):

In her article Let the Small Changes Begin: President Obama, Executive Power, and Don’t Ask Don’t Tell, Professor Jackie Gardina of Vermont Law School writes:

President Obama should not wait for Congress to act.  He has both the constitutional and statutory authority to implement change immediately.

In her article, she:

    • discusses the historical context of Don’t Ask Don’t Tell, specifically focusing on the lessons of the Clinton era and President Clinton’s successful use of executive power to improve the lives of gay and lesbian service members;
    • explains why President Obama must act pending congressional action, describing the status of repeal efforts in Congress and exploring potential barriers to success;
    • dissects the recent circuit court decisions on Don’t Ask Don’t Tell, which interestingly set the stage for President Obama’s first executive decision on the issue — whether to seek certiorari in Witt v. Air Force;
    • provides examples of five amendments to the current DoD directives implementing the statute that would improve the lives of the estimated 65,000 gay and lesbian members serving under the shadow of the statute.

Disproportionate impact on women, and particularly African-American women

A disproportionate number of service members discharged from the military due to Don’t Ask Don’t Tell are women, and in this group, African-American women are disproportionately discharged.  According to information obtained through a FOIA request by the Servicemembers Legal Defense Network:

    • In 2006: women made up 17 percent of the Army but 35 percent of discharges under the “don’t ask” law;
    • In 2007: women made up 15 percent of Army members, but 45 percent of the discharges under that law;
    • In 2007: women made up 20 percent of Air Force members, but 49 percent of the discharges for homosexuality, up from 36 percent in 2006.

Rejects my advances?  Must be a lesbian!

Why such a disproportionate impact on women?  Professor Gardina has pointed out:

The military has not offered an explanation for the disparity although one theory advanced by advocacy groups to explain why more women than men are discharged under the law is “lesbian baiting,” in which a man approaches a woman, she rejects him, and he retaliates by accusing her of being a lesbian.

The female face of Don’t Ask Don’t Tell

In her article Black Women Disproportionately Impacted by Don’t Ask Don’t Tell, Dr. Jeanne Scheper, formerly of the Palm Center and now at UC Irvine, writes:

For many people, the face of the “don’t ask don’t tell” policy is often a white and male face, a stereotype unfortunately often reinforced by the media and advocacy groups who have focused attention on the stories of white gay men who have been discharged.. . .

According to U.S. Census data, black women with same-sex partners serve in the military at 11 times the rate of women overall. . . . Pentagon data show that African American women are discharged under “Don’t Ask, Don’t Tell” at three times the rate that they serve in the military.. . .

It’s time to put a new face on the “don’t ask, don’t tell” debate.

Getting Involved in Don’t Ask Don’t Tell Lobby Day:  March 13

Participate in this year’s Don’t Ask Don’t Tell Lobby Day!   It’s scheduled for March 13; details here.

- cross-posted at Feminist Law Professos


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