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'Don't Ask, Don't Tell' Repeal: A Look Back

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Everything I learned about creating sustainable change I learned witnessing the effort to repeal "don't ask, don't tell." Before then I never truly appreciated what was required to create change. I knew in any movement activists disagreed on how to achieve a common goal. Is it best to pursue the movement's goals through litigation, or is it better to move through the legislative process, albeit at a slower pace? Is it better to accept incremental change, or is it more effective to hold out until the movement's goals are fully realized? Is it better to operate within the system, playing by well-established rules, or to achieve change through acts of civil disobedience and protest? When it came to the repeal of "don't ask, don't tell," I discovered that the answer to each of these questions was "yes." The repeal movement, like other civil rights movements before it, encompassed a broad range of strategies, each instrumental in the outcome.

The success of the legislative strategy is the most obvious and celebrated victory. But the legislative success did not occur in a vacuum. The foundation of repeal was laid through the courts, through the push for executive action, and through civil disobedience and the media attention it brought to the issue. It was aided by the tireless and persistent efforts of advocacy organizations like Servicemembers Legal Defense Network (SLDN), the Human Rights Campaign (HRC), the Palm Center, and Servicemembers United (to name just a few). It was pushed along by legal scholars who challenged the law's premise, and by social scientists who provided concrete data to drive the legislative arguments. It was made possible by the courageous men and women who stood up to tell their stories, to become the face of the repeal movement, and to speak for those who were forced to remain silent. And the entire movement stood on the shoulders of those who fought the battle with little hope of winning, like Technical Sergeant Leonard Malkovich, and those whose victories created small openings for others to move through, like Col. Grethe Cammermeyer and Commander Zoe Dunning, both of whom served openly and honorably until their retirement.

The court challenges to "don't ask, don't tell" and other discriminatory laws were critical to the success of legislative repeal. The effect of Judge Virginia Phillip's decision in Log Cabin Republicans v. Gates cannot be overestimated. In 2004, a year before the first bill to repeal "don't ask, don't tell" was introduced into Congress, the Log Cabin Republicans filed a suit in a California federal district court arguing that the law was unconstitutional on its face. Through a series of delays, including the retirement of the original judge assigned to the case, Judge Phillips did not declare the law unconstitutional until the fall of 2010. The six-year delay was fortuitous because it allowed Judge Phillips to rely on a 2008 Ninth Circuit case, Witt v. Air Force, that applied a heightened level of scrutiny to another "don't ask, don't tell" challenge. Judge Phillip's ruling was certainly momentous, but the remedy was even more so. She issued a worldwide moratorium on the implementation of "don't ask, don't tell" that lasted for eight days. Although the moratorium was lifted by the Ninth Circuit, Secretary of Defense Robert Gates used the specter of court-ordered repeal of the law to spur Congress into action.

While the court battles were being fought, others were placing both overt and covert pressure on the president and the Pentagon to take action pending congressional repeal. Advocacy organizations kept constant pressure on the president to keep his promise to lift the ban. In 2009 SLDN took out a one-page ad in Roll Call, a congressional newspaper, calling on President Obama to lead the repeal effort. The Palm Center consistently called for an executive order suspending the law. Others worked inside the Pentagon, seeking to educate and influence decision makers. Their efforts eventually bore fruit. In February 2010 Admiral Michael Mullen, the Chairmen of the Joint Chiefs of Staff, testified before the Senate that repealing "don't ask, don't tell" was the "right thing to do." Shortly after, Secretary Gates introduced new regulations intended to implement the law "more humanely." While the new regulations were short of repeal, the changes made it more difficult for the armed forces to investigate and discharge a gay or lesbian servicemember. They also allowed the Department of Defense to begin the slow transition to full repeal.

When it appeared that repeal efforts were moving too slowly or had stalled, some citizens decided to work outside the system. Thirteen veterans and former servicemembers chained themselves to the White House fence, some of them in uniform. When President Obama spoke, GetEqual, an LGBT rights organization, sent protesters to ask -- sometimes shouting over the president's speech -- when repeal was going to occur. Over 150 protesters stood outside the White House calling for repeal. These activities garnered media attention, allowed advocacy organizations to speak to the repeal effort, and kept "don't ask, don't tell" in the public's eye.

The last chapter of this story hasn't been written yet, and there is more work to be done. Unfortunately, the act repealing "don't ask, don't tell" did not explicitly prohibit discrimination based on sexual orientation, nor did it ensure equal access to military benefits for gay and lesbian servicemembers and their families. It simply repealed 10 U.S.C. §654 and returned to the Executive Branch the authority to regulate certain personnel matters. As a result, the historic repeal of "don't ask, don't tell" left a number of important policy issues unresolved. More than 14,500 service members were discharged because of their sexual orientation under "don't ask, don't tell," and estimates suggest that another 80,000 were discharged under the prior military policy; the stigma of that separation lives on forever in the servicemember's paperwork. The Uniform Code of Military Justice still criminalizes certain sexual activities, creating a special risk for gay and lesbian servicemembers. The repeal of "don't ask, don't tell" did not change the military's discriminatory medical regulatory ban in place for aspiring or current servicemembers who identify as transgender.

But this week we should recognize and celebrate the effort that went into repealing this policy. Would we be here if there hadn't been litigants willing to bring challenges to the law in the courts; if there hadn't been efforts to push the Pentagon for incremental change; if there hadn't been consistent pressure placed on Congress; if there hadn't been vocal activists willing to work outside the system? I doubt it. The repeal movement demonstrates that change requires multi-dimensional strategies, good timing, and quite honestly a little luck.