11/25/2013 08:42 pm ET Updated Feb 02, 2016

The DoD's Self-Inflicted Wound

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In the fall of 1996, when I was at the Naval Academy, we had been rocked by scandal after scandal. Car theft rings. Drug rings. Child molestation. High-profile midshipmen indicted for sexual assaults. Killer cheerleaders. Even Katie Couric grilled our superintendent, Admiral Charles Larson, in a national TV interview. After six months of this, we were worn down and hated the media for misrepresenting us at every turn.

Today the Air Force Academy is fighting off allegations of religious favoritism toward evangelical Christians after news broke that it had hired ex-gay ministry counselor Mike Rosebush and created a hostile environment for LGB cadets. Many if not most LGB cadets are not out. Others say they have been pressured by fellow cadets not to attend meetings of Air Force Spectrum, USAFA's gay-straight alliance. The previous superintendent even reportedly floated the idea of putting (presumably anti-LGBT) chaplains in charge of Spectrum.

It might be easier for the Air Force Academy to fight this off if it didn't have a long history of accusations of allowing evangelical proselytizing, just as the Naval Academy was more vulnerable after the 1992 electrical engineering cheating scandal. When some details of a very testy teleconference between the press and academy officials came out, I felt a profound sense of déjà vu. I knew exactly what those cadets in the teleconference were feeling.

In the Air Force Academy's defense, Lt. Gen. Michelle Johnson has been superintendent for all of three months. Rosebush was hired years ago, under a different administration, and does not actually interact with the cadets as a coach.

Lt. Gen. Johnson is seen as a potentially transformational leader. There is a very strong sense among LGBT cadets and alumni that she is dedicated to changing the culture and recognizes that there is lingering anti-LGB sentiment. The cadets who were involved in the teleconference came away from it appalled at how words were taken out of context, and the majority feel that the academy, and Lt. Gen. Johnson, are being represented unfairly. After the previous indifferent, proselytizing superintendent, there is a sense among LGB cadets that they have a leader willing to listen.

I don't blame Lt. Gen. Johnson, or even the academy itself. She's doing the best that she can within the system. Unfortunately, her hands are tied, and her ability to be the transformational leader that the academy needs is sharply limited by the system itself. While Dr. Rosebush has not been accused of discrimination in the performance of his duties at the academy, when discrimination against LGB cadets occurs, there is very little legal recourse available, either from the bottom up or the top down.

When "don't ask, don't tell" (DADT) was repealed, part of the deal to get it through was to drop provisions in the bill for an Equal Opportunity (EO) policy covering sexual orientation. This has left a critical gap in the DoD's overall policy. There are plenty of powerful people who want to discriminate against LGB troops. Much of the chaplain corps has been informed by their superiors that they are not to minister to LGB troops or even associate with chaplains who do. Conservatives in Congress have been pushing the Fleming Amendment to the National Defense Authorization Act, which would legally protect religiously motivated bullying against LGB people (or anyone else, for that matter).

There are those who want to make the military as hostile to LGB people as possible, and there is no legal shield in place to prevent it other than the good will of strong leaders. As a result, many LGB servicemembers are very reluctant to be out. Surveys by OutServe-SLDN suggest that less than 50 percent are.

The status quo is untenable. LGB troops still can't come out because there are people actively working to create hostile workplace environments for them. Stopping the hostile work environment is left completely up to the discretion of local unit commanders, who often harbor anti-LGB animus themselves. Without an EO policy covering sexual orientation, there is very little internal recourse. Given the lack of internal recourse, all that is left is going to the press. If the DoD doesn't want to be dealing with situations like the one at the Air Force Academy all the time, then an EO policy covering sexual orientation needs to be put in place.

Unfortunately, when the DoD is asked about the lack of an EO policy, they issue a litany of logically flawed excuses. They implausibly claimed that a new policy is not needed because discrimination against LGB people simply won't happen. When the Coast Guard implemented a policy barring discrimination on the basis of sexual orientation, the DoD claimed that it couldn't follow suit because "discrimination cases on the basis of sexual orientation are handled by the DoD IG system." The Pentagon neglected to mention that the reason that these complaints go to the IG is that there is no EO policy for sexual orientation in the first place, in a brilliant example of circular logic. They also fail to mention that there is next to nothing that the IG can do about it, even if the allegation is substantiated.

In other cases the DoD has broadly hinted that implementing an EO policy on sexual orientation would be impossible because they would have to collect statistics on who is gay. This excuse is the most ludicrous of all, given that 88 percent of Fortune 500 companies have found a way to implement nondiscrimination policies on the basis of sexual orientation without recording who is and isn't gay.

At any time, President Obama could issue an executive order directing the DoD to implement a policy on sexual orientation, but he has not done so. He seems reluctant to even engage the topic. Failing to do so does both the military and LGB troops a grave disservice, though. What is happening at the Air Force Academy is a distraction from their mission. What is happening to LGB servicemembers in the absence of protections is inexcusable.

The issue is a self-inflicted wound, and the only long-term solution is an EO policy that provides LGB servicemembers with real recourse against discrimination, while providing commanders with clear direction and legal mechanisms for preventing it.