Pentagon issues 'don't ask, don't' tell' rules on gays

March 02, 1994|By Gilbert A. Lewthwaite | Gilbert A. Lewthwaite,Washington Bureau of The Sun

WASHINGTON -- The armed services issued regulations yesterday implementing the Pentagon's "don't ask, don't tell, don't pursue" policy on homosexuals, formally ending the 50-year ban on gays in the military and provoking the immediate threat of a court challenge.

Under the new rules, which have been the center of controversy since President Clinton began reviewing the policy last year, homosexuals will be allowed to serve so long as they do not declare their homosexuality or engage in homosexual conduct.

"These are regulations which outline a policy that is fundamentally flawed," said Gregory King, communications director of the Human Rights Education Fund, which campaigns for gay rights. "The 'don't ask, don't tell, don't pursue' policy is basically a 'lie and hide' policy. It doesn't end discrimination in the military."

The immediate effect of yesterday's move is to allow seven members of the armed forces, now on standby reserve pending discharge hearings for alleged declarations of homosexuality, to try to remain in the military by proving that they did not engage in homosexual activity.

A declaration of homosexuality by a member of the armed forces is presumed to indicate gay conduct, or an intent or desire to engage in it. The accused has the burden of proving that he or she is not active in or inclined toward homosexual acts.

The seven facing discharge must decide whether to defend themselves under the new regulations. If they do not, the services, which have placed them on unpaid status, will begin discharge proceedings promptly, a Pentagon official said.

Under the regulations, sexual orientation is regarded as a private matter. Recruits are not asked to declare sexual orientation when they enlist. But while in the military, they may not declare that they are gay. This is the "don't ask, don't tell" portion of the policy.

The "don't pursue" portion limits military investigations to cases in which a commanding officer decides there is "credible information that there is basis for discharge."

This must involve homosexual acts, declarations of homosexuality, or marriages or attempts to marry someone of the same sex.

The regulations were due to be issued early last month but were delayed while Pentagon lawyers changed the language slightly to narrow a gap between the wording of the regulations and that of the statute on gays in the military that Congress passed last year.

Conservative Republicans on the Senate Armed Services Committee, particularly Sen. Strom Thurmond of South Carolina and Sen. Dan Coats of Indiana, feared that any difference between the language of the statute and that of the regulations might provoke a court challenge.

A court challenge will be filed next week in federal District Court in Brooklyn by the Lambda Legal Defense and Education Fund, which is representing several homosexuals discharged from the military.

The new case will involve seven plaintiffs -- some called John Doe and Jane Doe because they are undeclared homosexuals on active duty -- and will claim that their First Amendment rights of free speech and Fifth Amendment rights of equal protection have been abridged, according to Kevin Cathcart, Lambda's executive director.

In a series of cases relating to homosexuals discharged from the military, federal courts have held the Pentagon in violation of equal protection rights. But the Defense Department is appealing the findings.

Tanya Domi, legislative director of the National Gay and Lesbian Task Force, said: "It is an offensive and heinous policy."

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