US military must face lawsuit over discharge of LGBTQ veterans

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June 21 (Reuters) – A federal magistrate judge in San Francisco has refused to dismiss a lawsuit claiming the U.S. military violated the constitutional rights of more than 35,000 LGBTQ veterans by failing to grant them honorable discharges after they were barred from serving because of their sexual orientation.
U.S. Magistrate Judge Joseph Spero on Thursday rejected claims by the U.S. Department of Defense, opens new tab that the proposed class action could not move forward because the five veterans who filed it last year had not first requested changes to their discharge paperwork through a process established by the agency.

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Spero said the plaintiffs could pursue claims that forcing LGBTQ veterans to engage in the “burdensome and even traumatic” process of seeking to change their discharge status violates their constitutional rights to due process and equal protection.
Discharges listed as “other than honorable” can bar veterans from receiving various benefits including healthcare, loans, job opportunities and tuition assistance.

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“At least as a matter of pleading, these allegations are sufficient to allege conduct that shocks the conscience,” Spero wrote.

Lawyers for the plaintiffs applauded the decision in a joint statement.
“These veterans have been forced to carry official yet discriminatory paperwork from the U.S. government that unnecessarily indicates their sexual orientation anytime they try to prove their status as veterans,” they said, referring to documents that set out the reasons for service members’ discharges.

There is nothing to be gained by his continued incarceration and we want him brought home to Australia.

The Department of Defense did not immediately respond to a request for comment.
A Pentagon policy known as “Don’t Ask, Don’t Tell” that was adopted in 1993 during the administration of Democratic former President Bill Clinton barred openly gay, lesbian and bisexual people from military service and allowed for the “other than honorable” discharge of LGBTQ people who revealed their sexual orientation.

About 14,000 people were discharged from the military under the policy, which was repealed in 2011. More than 20,000 others had been discharged since 1980 because of their actual or perceived sexual orientation, according to the lawsuit.
The plaintiffs say that maintaining the status of veterans discharged under Don’t Ask, Don’t Tell and predecessor policies violates their constitutional rights. The lawsuit seeks an order requiring the Department of Defense to conduct a comprehensive review of discharges based on sexual orientation and grant honorable discharges when appropriate.

The government in moving to dismiss the case said it has procedures in place that allow LGBTQ veterans to apply for a “correction” to their discharge papers and has granted those requests in more than 1,400 cases.
But Spero on Thursday said the plaintiffs should have a chance to prove their claims that the process is lengthy and burdensome, and that simply being required to go through it violates their constitutional rights.
“The burdens Plaintiffs allege are not mere inconvenience,” Spero wrote. “Rather, Plaintiffs highlight aspects of the process that give rise to stigma, re-traumatization, and isolation.”
The case is Farrell v. U.S. Department of Defense, U.S. District Court for the Northern District of California, No. 3:23-cv-04013.
For the plaintiffs: Chelsea Corey of King & Spalding; Elizabeth Kristen of Legal Aid at Work
For the Defense Department: Andrew Carmichael of the U.S. Department of Justice
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