LGBTQ+ Veterans Advance Lawsuit Over ‘Don’t Ask, Don’t Tell’ (1)

The US Defense Department must defend a lawsuit by LGBTQ+ military veterans who say their discharges under the agency’s one-time “Don’t Ask, Don’t Tell” policy should be systematically upgraded to end its lingering discriminatory effects.

The US District Court for the Northern District of California was unpersuaded by the government’s contention that the proposed class action didn’t adequately plead claims under the US Constitution’s equal protection clause because there are no allegations of discriminatory intent and the claims are based on government inaction, a theory that courts have rejected.

The suit arises from a memorandum the department issued as part of repealing “Don’t Ask, Don’t Tell” that expressly found there was no need for broad remedial relief correcting the discharge paperwork of military members ousted under the policy, the court said. That “gives rise to a plausible inference of discriminatory intent,” it said Thursday.

According to the suit, the usual process for correcting unlawful or erroneous reasons for a military discharge are lengthy and burdensome. This hinders LGBTQ+ soldiers’ ability to reenlist, find other employment, and obtain benefits that come from receiving an honorable discharge, because their papers illegally reference their sexual orientation, the suit said.

“This ruling allows us to move forward in rectifying the discriminatory effects of the Department of Defense’s policies, ensuring that LGBTQ+ veterans receive the honor they rightfully deserve, having served our country with dignity and integrity,” class counsel said Friday in an email. “Over 35,000 service members were kicked out of the U.S. military based on sexual orientation and issued paperwork that explicitly called out their actual or perceived sexual orientation,” they said.

Almost 30,000 of them “were denied honorable discharges, resulting in decades of discrimination,” the email said. “This decision is especially significant as it comes during Pride Month. These brave veterans honorably served our country, and we look forward to securing the justice they rightfully deserve,” the lawyers said.

‘Not Facially Neutral’

The lawsuit includes fact allegations that could establish that the department was aware of the importance of a veteran’s discharge status for obtaining benefits, Magistrate Judge Joseph C. Spero said in denying the government’s motion to dismiss. The DOD’s focus was misplaced in arguing that no equal protection violation was alleged because its records correction process is the same for all military members and thus facially neutral, the judge said.

The equal protection claims are based on the department’s “affirmative decision” to leave the paperwork of veterans discharged under “Don’t Ask, Don’t Tell” and similar predecessor policies unchanged and to require soldiers discharged based on their sexual orientation or perceived sexual orientation to seek a correction, Spero said. “The Court finds that that policy is not facially neutral,” and that the suit alleges the practice has a discriminatory disparate impact because only discharge papers issued to LGBTQ+ soldiers reference sexual orientation, he said.

The proposed class can pursue substantive due process claims based on alleged invasions of privacy and deprivation of benefits, the judge said.

The department was wrong that the suit needed to allege executive action that “shocked the conscience” to state plausible substantive due process claims, the court said. The plaintiffs challenge the general decision to not create a systemic process to fix their discharge papers, not the outcome of a particular proceeding seeking a records correction, it said.

The “extensive allegations” regarding the trauma inflicted by the department’s approach to correcting discharge papers issued under the policies at issue would satisfy the shocked-the-conscience standard even if it did apply, Spero said.

The plaintiffs’ claims that the procedures violated procedural due process protections likewise survive dismissal, because the department failed to cite any case law backing its contention that the plaintiffs aren’t entitled to the exact process they seek, the judge said.

Standing, Timeliness

The court also rejected arguments that the plaintiffs lack standing to bring the suit and that their claims are untimely.

That they’re ready and able to seek paperwork corrections through the individual process they say results in trauma by making LGBTQ+ veterans apply for relief from the very institution that discriminated against them under “Don’t Ask, Don’t Tell” is a sufficient imminent injury, Spero said. The ongoing effects of the lack of a systemic process, which causes LGBTQ+ soldiers to submit uncorrected paperwork revealing their sexual orientation is a “continuing violation,” he said.

The policy they seek to have changed through their lawsuit—the lack of a systemic fix—"remains in place and continues to be enforced,” the judge said.

The plaintiffs’ time to sue alternatively was equitably tolled because the traumatic correction process LGBTQ+ soldiers affected by “Don’t Ask, Don’t Tell” must currently pursue to correct their discharge paperwork creates a barrier to accessing their available remedies, the court said.

Legal Aid At Work, the Impact Fund, and King & Spalding LLP represents the proposed class. The Justice Department represents the DOD.

The case is Farrell v. Dep’t of Defense, 2024 BL 211201, N.D. Cal., No. 3:23-cv-04013, 6/20/24.