The Legal History of LGBTQ+ People in the Military

Restrictions have been placed on LGBTQ+ people in the U.S. military since the American Revolutionary War. More than 100,000 American military servicemembers have been discharged based on their sexual orientation or gender identity. And many of these restrictions only began to lift within the last decade.

This article provides:

• A timeline of key legal events affecting LGBTQ+ people in the military

• A brief history of the relationship between the LGBTQ+ community and the U.S. military

1778: First Military Member Discharged from Military for Homosexuality

During the American Revolutionary War, engaging in homosexual activity was grounds for discharge from the military.

In 1778, Lieutenant Gotthold Frederick Enslin was dismissed from the military for homosexuality and found guilty of “attempting to commit sodomy.”

At the time, sodomy was generally defined as any non-procreative sex, such as anal or oral sex, regardless of consent or sexuality. The definition of sodomy varied among the states. However, anti-sodomy laws generally targeted gay men.

1920-1950: Homosexual Activity Grounds for Discharge from U.S. Military

Throughout the first half of the 20th century, the U.S. military actively tried to keep LGB individuals out of the service. Servicemembers discovered to be gay were severely punished.

• In 1920 the Articles of War of the United States made sodomy punishable by court-martial.

• In 1941 “homosexual proclivities” were a disqualifying condition in the military draft.

• In 1942 military psychiatrists linked homosexuality to psychopathy. They deemed homosexual people unfit for service.

• A 1944 policy directed homosexuals to be committed to military hospitals, examined by psychiatrists, and discharged as unfit for service.

• In 1950 Article 125 of the Uniform Code of Military Justice criminalized sodomy. Under Article 125, sodomy was defined as “unnatural carnal copulation with another person of the same or opposite sex or with an animal.”

During this time, the U.S. military issued “blue discharges” to servicemembers who had “undesirable habits and traits of character.” This included being homosexual.

These administrative discharges (issued on blue paper) were considered neither dishonorable nor honorable discharges. Blue discharges were generally used to save the cost and time of lengthy court-martial hearings.

In attempting to determine whether servicemembers were homosexual, the military used various methods, including:

• Abusive interrogations

• Solitary confinement in hospitals

• Military prisons, sometimes called “queer stockades”

There was no right to appeal granted under blue discharges.

1963-1981: Transgender and Gay Individuals Banned from Military Service

In 1963, U.S. Army Regulation 40-501 banned transgender people from serving due to the belief that they were “mentally unfit.”

And in 1981, the U.S. Department of Defense released Directive 1332.14. This banned homosexual people from serving in the military.

1986: Bowers v. Hardwick

In 1982, a Georgia police officer found Michael Hardwick and another man participating in consensual oral sex. The officer arrested both men under the state’s anti-sodomy law.

Hardwick sued Georgia attorney general Michael Bowers, arguing that the law was invalid.

In 1986, the U.S. Supreme Court upheld Georgia’s anti-sodomy law. The court found that there is no fundamental right for “homosexuals to engage in sodomy.”

The Bowers decision became the basis for the military’s defense of Article 125’s anti-sodomy laws.

1993: Don’t Ask, Don’t Tell

In 1993, the U.S. Department of Defense issued a policy that prohibited military personnel from discriminating against or harassing closeted LGB military servicemembers or applicants. But, it also barred openly LGB people from serving in the military. This policy became known as “don’t ask, don’t tell” (DADT)

During his presidential campaign, President Clinton promised to allow LGB people to serve openly in the military. But this was met with significant backlash. President Clinton introduced DADT as a compromise after he took office.

DADT caused the discharge of approximately 14,000 military servicemembers prior to its repeal in 2010.

1996: Defense of Marriage Act

Congress passed the Defense of Marriage Act (DOMA) in 1996. Among other things, DOMA denied federal benefits and recognition to same-sex couples. This included military family benefits, such as:

• Health benefits

• Visitation rights to military bases and hospitals

• Legal counseling

• Housing and transportation allowances

• Benefits to surviving spouses

DOMA limited the military’s ability to extend these benefits to lesbian, gay, and bisexual military servicemembers in same-sex marriages.

2003: Lawrence v. Texas

In 1998, Texas police found John Geddes Lawrence Jr. and Tyron Garner engaging in sexual intercourse in Lawrence’s apartment. They charged both men under Texas’s anti-sodomy law. At the time, Texas’s anti-sodomy law made consensual same-sex “intimate sexual conduct” a misdemeanor.

Lawrence sued. And in 2003, the U.S. Supreme Court held anti-sodomy laws unconstitutional under the Due Process Clause of the Fourteenth Amendment. This decision overruled Bowers v. Hardwick and lifted any ban on sex between people of the same sex nationwide.

2004: United States v. Marcum

Lawrence v. Texas’s ban on anti-sodomy laws laid the groundwork for another important case a year later. United States v. Marcum challenged the constitutionality of Article 125 of the Uniform Code of Military Justice. This 1950 rule (discussed above) criminalized sodomy among military personnel.

The Court of Appeals for the Armed Forces ultimately held that Lawrence applies to the military. Therefore, private conduct should be protected (referred to as a “zone of liberty”).

The Court established a three-part test to decide when military officials could apply Article 125:

• Was the conduct within the liberty interest defined in Lawrence?

• Did the conduct consist of behaviors or factors outside the analysis in Lawrence?

• Are there any additional factors specific to military environments that affect the scope of the liberty interest in Lawrence?

This test still allowed the military to punish homosexual conduct in some circumstances. But the recognition of the liberty interests outlined in Lawrence was a noteworthy milestone.

2010: Log Cabin Republicans v. United States

In 2004, the Log Cabin Republicans (a Republican organization that advocates for LGBT+ equality) filed a lawsuit challenging “don’t ask, don’t tell” (DADT). They argued that DADT violated the First Amendment and the Fifth Amendment.

In September 2010, the U.S. District Court for the Central District of California ruled DADT unconstitutional. The court also ordered an injunction to bar enforcement of the policy.

The federal government asked the Ninth Circuit Court of Appeals to stay the injunction. The stay was granted in November 2010.

One month later, the Don’t Ask, Don’t Tell Repeal Act of 2010 passed the House of Representatives and Senate and was signed into law by President Obama. The repeal took effect in September 2011, allowing LGBTQ servicemembers to serve openly.

Although it repealed DADT, the DADT Repeal Act did not ban discrimination on the basis of sexual orientation in the military. It also did not guarantee equal benefits to LGB military servicemembers. The U.S. military continued to grapple with these issues for many years.

2011: VHA Transgender and Intersex Healthcare Policy

In 2011, the Veterans Health Administration released Directive 2011-024. This directive provides several services for transgender veterans, including:

• Gender counseling

• Hormone therapy

• Pre-surgical evaluations

• Post-surgical care

However, gender-affirming surgeries are not covered by the Veterans Health Administration.

2013: United States v. Windsor

Edith Windsor and her partner Thea Spyer were married in Ontario, Canada, in 2007. Same-sex marriage was not federally recognized in the United States at the time. But they lived in New York, which recognized same-sex marriages performed in other jurisdictions.

Spyer passed away in 2009 and left her estate to Windsor. But Windsor was denied a federal tax exemption for surviving spouses under Section 3 of the Defense of Marriage Act.

Windsor filed suit in federal district court the following year, and the case eventually made its way to the U.S. Supreme Court. In 2013, the Supreme Court ruled that Section 3 was unconstitutional. The justices reasoned that it violated due process and equal protection principles.

Until that point, the U.S. military relied on the Defense of Marriage Act to deny benefits to military servicemembers in same-sex marriages. But after Windsor, the U.S. Department of Defense reversed course and began providing equal benefits to LGB military servicemembers and their spouses.

2013: Ban on Consensual Same-Sex Activity Lifted

The National Defense Authorization Act for Fiscal Year 2014 was signed into law by President Obama in 2013. Among other things, the National Defense Authorization Act decriminalized consensual sodomy under Article 125 of the Uniform Code of Military Justice.

2015: Obergefell v. Hodges

In 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that all states must issue marriage licenses to same-sex couples. They also must recognize marriages of same-sex couples performed in different states.

Following Obergefell, the U.S. Department of Veteran Affairs released a statement affirming its recognition of same-sex marriages and extended equal spousal benefits to same-sex married couples.

2016: Ban on Transgender People in Military Lifted

In 2016, the Department of Defense announced that transgender people could openly serve in the military.

DoD Instruction 1300.28 provided a training handbook, medical protocol, and guidance to assist in the transition of transgender servicemembers. However, a few years later, these policies were briefly rolled back.

2019: Ban on Transgender Applicants with History of Gender Transition Treatment or Gender Dysphoria

Under the Trump administration, the Department of Defense issued Directive-type Memorandum-19-004, which banned applicants to the military if they:

• Had any history of gender transition treatment unless the applicant has completed all transition treatment and has been “stable in the preferred gender” for 18 months following the last gender transition treatment, or

• Had any history of gender dysphoria, with the exception of applicants who demonstrated 36 months of “stability” in the sex assigned to them at birth and had not yet transitioned.

The implementation of this ban followed the 2019 U.S. Court of Appeals for the District of Columbia Circuit decision in Doe v. Trump. In that case, the court ultimately vacated the initial injunction on the ban originating from President Trump’s 2017 Presidential Memorandum on Military Service by Transgender Individuals. Preliminary injunctions against the Presidential Memorandum were also granted in Stone v. Trump, Karnoski v. Trump, and Stockman v. Trump in 2017.

Later that month, the U.S. Supreme Court granted the Trump administration’s request to lift the lower courts’ injunctions on the ban while court challenges continued.

2021: Ban on Transgender People in Military Repealed

In 2021, President Biden signed the Executive Order on Enabling All Qualified Americans to Serve Their Country in Uniform during his first week in office, effectively revoking the Trump administration’s ban on transgender people serving in the military.

Following this executive order, transgender people can serve in the military with no restrictions and receive gender-affirming care if transitioning as a servicemember.

The U.S. Department of Veteran Affairs (VA) also issued guidance restoring VA benefits for military servicemembers who had received “other than honorable” discharges due to their sexual orientation, gender identity, or HIV status.

2022: Respect for Marriage Act

Not every state has codified the right for same-sex couples to marry. But the right to federal and state recognition of legally-granted same-sex marriages has been codified in the Respect for Marriage Act of 2022.

RFMA guarantees federal and state benefits for military servicemembers in same-sex marriages. These benefits will remain protected even if the Supreme Court overturns Obergefell.

Getting Legal Help

If you need guidance in navigating military life as a member of the LGBTQ+ community, an attorney can help. A military lawyer, veteran’s benefits lawyer, or civil rights lawyer can explain the benefits and protections provided for LGBTQ+ military servicemembers or applicants.