Judge denies Pentagon request to dismiss LGBTQ veterans’ lawsuit

A legal challenge brought against the Department of Defense by a group of LGBTQ veterans who were dismissed under a former military policy that prevented them from serving openly will move forward after a federal judge denied the Pentagon’s motion to dismiss it. 

Five LGBTQ veterans filed the class action lawsuit last summer in the U.S. District Court for the Northern District of California, arguing that the Defense Department violated their constitutional rights by failing to update them to honorable discharges after repealing its “Don’t ask, don’t tell” (DADT) policy, which dismissed them with less-than-honorable discharges, more than a decade ago. 

Separation documents assigned to veterans discharged under DADT for their actual or perceived sexual orientation denotes their sexuality as the reason for their discharge, which the plaintiffs argue violates their privacy. The discharge papers also deprive LGBTQ veterans of certain benefits, such as a veteran designation on their state ID or driver’s license and some military discounts, according to the lawsuit. 

While veterans may apply to correct their discharge papers, the plaintiffs argue the process is lengthy and burdensome. 

Attorneys for the Pentagon had sought to dismiss the lawsuit, citing a 2011 internal policy guidance that instructed military correction boards to grant veterans’ requests for discharge upgrades following the repeal of DADT. The guidance noted, however, that “broad, retroactive corrections of records from applicants discharged under DADT are not warranted.” 

Correction boards have reviewed “more than 1,683 applications by veterans for records correction and have granted relief to more than 1,406 former service members who, like Plaintiffs here, were discharged pursuant to the DADT policies,” the department wrote in its motion to dismiss. 

U.S. Magistrate Judge Joseph C. Spero rejected that request late Thursday, ruling that the plaintiffs will likely prove the department violated their right to equal protection under the Fifth and 14th amendments by failing to systematically correct the paperwork of all veterans discharged under DADT and similar policies. 

At a February motion hearing, Pentagon attorneys argued the rules and procedures governing the department’s records correction process are indiscriminate.

Spero on Thursday said he disagreed, and the military’s decision to leave the discharge paperwork of LGBTQ veterans dismissed under DADT unchanged “was motivated by discriminatory intent.”  

He wrote in his decision that the plaintiffs are also likely to succeed in arguing that the Department of Defense’s actions violated their rights to substantive and procedural due process. 

The plaintiffs’ allegations, he wrote, are sufficient to “raise a plausible inference” that the department’s conduct was intended to injure in some way unjustifiable by any government interest, “namely, to perpetuate discrimination against Plaintiffs based on their sexual orientation or perceived sexual orientation even after they were wrongfully discharged from the armed services on that basis.” 

The Department of Defense did not immediately return a request for comment. 

The department has in recent years taken steps to correct discharge designations given to LGBTQ veterans who served under DADT. Last year, it said it would proactively review military records of veterans who received a less-than-honorable discharge because of their sexual orientation. 

A resolution filed by Senate Democrats earlier this week would formally apologize for past actions that discriminated against LGBTQ service members and federal employees, including DADT, which was repealed in 2011. 

Attorneys for the veteran plaintiffs celebrated Thursday’s ruling in a joint statement. 

“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,” attorneys from the Impact Fund, Legal Aid at Work and King & Spalding LLP said in the statement. 

“This decision is especially significant as it comes during Pride Month, a time when we celebrate the progress, and recognize the ongoing struggle for LGBTQ+ rights,” they added. “These brave veterans honorably served our country, and we look forward to securing the justice they rightfully deserve.”