Trans Universe » Dixon Osborn

A robust and healthy debate on gay military service

Monica Helms — Sat, 19 Jul 2008 13:31:52 +0000

Guest blogger Dr. Nathaniel Frank is Senior Research Fellow at the Palm Center at University of California, Santa Barbara, and teaches on the adjunct faculty at New York University. His scholarship and writing on gays in the military and other topics have appeared in numerous publications and he has been interviewed on major television and radio programs. His book, Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America, will be published in March, 2009.

Last week, the Palm Center released a report authored by four retired flag officers that called for the repeal of the “don’t ask, don’t tell” policy on gays in the military. The report marked the first time that a flag officer in all four service branches thoroughly analyzed the current policy and recommended ending the ban on open service by gays, lesbians and bisexuals.

Following its release, Dixon Osburn, co-founder and former executive director of the Servicemembers Legal Defense Network (SLDN), wrote a critique of the Palm Center report at The Bilerico Project.

Osburn, who left SLDN last year, is considered by many to be a true hero for his tireless efforts on behalf of service members who have been adversely affected by the rules governing gay service, and the Palm Center hopes that Osburn will continue to play a valuable role in the national conversation about “don’t ask, don’t tell” as he has for so many years.

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In his blog post, Osburn argues that several of the study group’s recommendations are “as bad as the cure [sic], and may significantly undermine efforts to achieve full equality under law.” His main critique is that the group urges Congress to repeal the current law banning openly gay service but to “return authority for personnel policy under this law to the Department of Defense.” Osburn worries that, “by returning authority to regulate gays to the Pentagon, the Palm Center Study Group proposal allows the Pentagon to reinstitute a regulatory ban on gays in place of the law.”

Osburn’s blog post makes several other points. He writes that the flag officers did not seek to reverse Article 125 of the Uniform Code of Military Justice, which punishes service members for engaging in consensual sodomy, regardless of their sexual orientation. He critiques a section of the report that, according to Osburn, “prohibits acts committed for the purpose of satisfying sexual desires,” and another which he says “recommends prohibiting sexual conduct [that is] ‘prejudicial to good order and discipline and unit cohesion.’” And he objects to a section that states that “telling” should be allowed but considered “personal and private,” because he worries that this language does not make it sufficiently clear that “public telling” should be permitted.

Finally, Osburn writes that the officers’ report is as troubling politically as it is substantively, because there is already a bill in Congress that would require a policy of non-discrimination. He suggests that the presence of more than one approach for Congress to consider does damage to his and other activists’ efforts to overturn the ban. While praising some of the report’s findings, he writes that “the recommendations flowing from the report… have the potential to set fourteen years of progress on ‘don’t ask, don’t tell’ back on its heels.”

The mission of the Palm Center, an academic think tank that is part of the University of California’s Institute for Social, Behavioral, and Economic Research, is to inform public policy conversations with state-of the art academic research to enhance the quality of public dialogue about critical and controversial issues. As a research organization, the Palm Center does not advocate policy or align itself with a particular political candidate or party and it does not seek to affect the political strategies that various interest groups may deploy in order to achieve their objectives.

The purpose of the flag officers’ study group was to facilitate a thorough, open, and unbiased assessment by senior military officials of the role played by “don’t ask, don’t tell” in contributing to military readiness. It would have significantly undermined that objective if staff members of the Palm Center had sought to influence the officers’ report by pressing them to reach specific recommendations that comport with the political position or approach of any one individual or group.

Osburn’s blog post made some incorrect and misleading assertions which are based on misreading, misinterpreting, or taking out of context certain sections of the report.

First, there is no section that “prohibits acts committed for the purpose of ‘satisfying sexual desires.’” Rather, the report recommends that any policy that is implemented establish standards which are “neutral with respect to sexual orientation” and suggests prohibitions against “inappropriate” sexual contact.

Second, there is no recommendation “prohibiting sexual conduct ‘prejudicial to good order and discipline and unit cohesion.’” Rather, the report endorses regulations that “preclude misconduct” that is prejudicial to good order, discipline and cohesion.

Finally, the recommendation to “eliminate” the “don’t tell” clause of the current policy does not leave unclear the officers’ desired action for rules regulating disclosure. The report explicitly recommends eliminating the “don’t tell” restriction and, to ensure that gays and lesbians are not required to state their orientation, it states that the “prerogative to disclose sexual orientation” should remain “a personal and private matter.”

While some people, like Osburn, had objections to aspects the flag officers’ recommendations, others, such as the Washington Post editorial board, found the report to be of great merit. The Palm Center is pleased and honored that the report is helping to inform a robust and healthy debate on the status and direction of gay service. Let the conversation continue.

A Bad Prescription for Don’t Ask, Don’t Tell

Monica Helms — Fri, 11 Jul 2008 18:45:44 +0000

Guest Blogger Dixon Osborn (Cross posting from The Bilerico Project)

Dixon Osburn is Co-founder and former Executive Director of Servicemembers Legal Defense Network.

The Palm Center at the University of California Santa Barbara this week published a new report by a “study group” of four flag officers calling for repeal of Don’t Ask, Don’t Tell. In issuing the report, the four flag officers have joined five dozen other generals and admirals that have called for repeal. The growing chorus for repeal from the highest ranks of our armed forces should be cause for celebration.

The report’s findings are indeed groundbreaking. For the first time ever, four flag officers have reviewed “Don’t Ask, Don’t Tell” in some depth and, according to the Palm Center, found that the law “prevents some gay troops from performing their duties, that gays already serve openly, that tolerance of homosexuality in the military has grown dramatically, and that lifting the ban is ‘unlikely to pose any significant risk to morale, good order, discipline, or cohesion.’”

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Despite the significant and good findings, the Palm Center’s Study Group report, makes several recommendations, without analysis, that are as bad as the cure, and may significantly undermine efforts to achieve full equality under law. The Palm Center commissioned the report, and the flag officers agreed to participate on the condition that the Palm Center not influence the analysis or recommendations. It just goes to show you have to be careful what you ask for.

The Palm Center Study Group report’s first and primary recommendation is that “Congress should repeal [Don't Ask, Don't Tell] and return authority for personnel policy under this law to the Department of Defense.”

Aubrey Sarvis of Servicemembers Legal Defense Network (SLDN) rightly told The Washington Blade that Congress should adopt the Military Readiness Enhancement Act which would not only repeal Don’t Ask, Don’t Tell, but codify a law of nondiscrimination to protect lesbian, gay and bisexual service members.

By returning authority to regulate gays to the Pentagon, the Palm Center Study Group proposal allows the Pentagon to reinstitute a regulatory ban on gays in place of the law, just as it had done from World War II to 1993. The authors prefer that the military regain authority to regulate personnel matters in this area, but there is no guarantee that we would like the result coming out of the Pentagon. Former Joint Chiefs Chairman Peter Pace recently called gays “immoral.” I doubt he would be leading the charge for equality. The Palm Center’s Study Group report banks on a precarious hope that the military will do the right thing.

The report’s recommendation also means that the fate of gays in the military can change at the whim of each new Administration or Secretary of Defense. During one term, gays may be welcomed, only to be banned by the next leader. In the past, we have seen the military send openly gay troops to the Persian Gulf only to discharge them when they returned home. We have seen past gay bans that have given commanders discretion to retain or dismiss gay troops, leading to arbitrary results. Our LGBT service members deserve the peace of mind that law protects them from whim, discomfort and prejudice.

The Palm Center Study Group’s second recommendation is that “the Department of Defense should…[maintain] current authority under the Uniform Code of Military Justice and service regulations to preclude misconduct prejudicial to good order and discipline and unit cohesion.” The recommendation leaves intact Article 125 of the Uniform Code of Military Justice which criminally punishes service members, regardless of sexual orientation, for consensual sodomy. Returning the authority to the Pentagon to regulate gay service members, leaves open the door that it could impose regulations that would administratively separate gay service members for sexual conduct.

There are other portions of the Study Group’s recommendations that are troubling.

One section prohibits acts committed for the purpose of “satisfying sexual desires” which mirrors language in the current regulations implementing Don’t Ask, Don’t Tell. Yet, today, the Pentagon defines such prohibited conduct to include handholding and pats on the back. Another section recommends prohibiting sexual conduct “prejudicial to good order and discipline and unit cohesion.” Some military courts have defined any same gender sexual conduct as “prejudicial to good order and discipline and unit cohesion.” One should be very concerned by the use of the same language here.

Another section states that “telling” should be allowed, but considered a “personal and private” matter. It is not clear whether “public telling” is prohibited, or exactly what that means. The current implementing regulations to Don’t Ask, Don’t Tell use similar language, calling sexual orientation a “personal and private matter.” Under current law, however, “personal and private” means “absolute secrecy.” A violation of absolute secrecy results in discharge. The use of the words “private and personal” was a sleight of hand used by the drafters of Don’t Ask, Don’t Tell to make the discrimination sound more palatable. Again, one should be deeply troubled by the use of similar language here.

The Study Group’s recommendations are not only problematic in substance, but politically. There are now two recommendations in the public domain for Congress to consider – the Military Readiness Enhancement Act which repeals Don’t Ask, Don’t Tell and implements a law of nondiscrimination and this, which does not.

I appreciate that the Palm Center avows that it had no say in the final recommendations. It is an academic research institution, even though its research is singularly focused on repeal of Don’t Ask, Don’t Tell. One can only hope that leading advocates for full equality will be able to argue that the report published under the Center’s banner does not reflect the opinion of the experts on the issue.

Some might argue that the Study Group’s recommendations reflect a more realistic compromise. More Members of Congress (and military leaders) might be willing to support repeal of Don’t Ask, Don’t Tell only if there is no further legislation and the issue returns to the Pentagon for further deliberation. We are not at that point, however.

The Military Readiness Enhancement Act has been introduced in Congress only twice, and it has more co-sponsors this session than last. Members on the House Armed Services Committee have promised the first hearings on gays in the military since Don’t Ask, Don’t Tell – a significant milestone. Political experts predict that the Democrats will substantially increase their majorities in the House and Senate in November, and with that possibly produce a majority solidly in favor of repeal. Senator Obama has stated he supports the Military Readiness Enhancement Act and would sign it into law if Congress passed it and he were President. Why would anyone suggest that we compromise now?

There are good parts to the Palm Center’s report. I welcome the fact that four new flag officers support repeal of Don’t Ask, Don’t Tell. The findings and analysis are compelling. The recommendations flowing from the report, however, have the potential to set fourteen years of progress on Don’t Ask, Don’t Tell back on its heels. Those who support full equality will have their work cut out to undo the damage.