To download a pdf version of this memo, click here.

The Pentagon Working Group (PWG) has recognized the dilemma of obtaining candid information from military members about “don’t ask, don’t tell” when communication of that information could lead to investigation and separation under the policy.  If service members reveal they are gay during the review process, they have made a statement concerning their sexual orientation that is prohibited by 10 U.S.C. § 654 (b)(2).  The impact of “don’t ask, don’t tell” on the accuracy of the review process, however, is even greater than its role in discouraging candid communication from gay service members;  straight service members must also consider whether talking about their experience serving with gay colleagues will expose someone to risk of separation by revealing knowledge of prior statements, conduct, or marriages that are also prohibited under § 654 (b).  It’s not only the statements that gay service members (whether openly gay or not) may make to researchers that potentially put them at risk of separation.  The full range of information shared by any service member concerning their knowledge of prior conversations, events, or relationships may also put persons at risk of separation.

This risk also impacts the usefulness and accuracy of the study process itself.  If gay service members believe they cannot speak freely without legal risk, the PWG will be denied information important to the task.  If straight service members suspect that their disclosures could be used to identify gay colleagues, they may choose to speak guardedly, vaguely, or not at all.  The PWG would receive a false picture of how information about sexual orientation is already being handled within the military.  In addition, the more the PWG attempts to address the risk by stripping out information that could possibly be used to identify a gay service member (places, times, units, colleagues, etc.), the less value it will have for purposes of the study.

The PWG does not intend that candid communication with researchers should trigger investigation and separation under “don’t ask, don’t tell,” and it will likely assure persons interviewed that their statements will not be used for that purpose, as Secretary of the Army, John McHugh has recently done. Yet the PWG has no legal authority to grant protection from later enforcement of the policy.  This is not a promise the PWG has the power to keep, whatever good intentions they may have.  Service members have no legal assurance that researchers will maintain confidentiality of information throughout the review process, and they have no legal assurance that information subsequently coming to the attention of commanders, whether first-, second-, or third-hand, will not be used to enforce the policy.  When the issue is a guarantee of immunity to service members who may be “outed” as a result of the study process, one needs to be able to point to something in the law or regulation itself that limits what otherwise would be a commander's full discretion to enforce.  Without it, lawyers would not be comfortable advising service members to speak freely.

The PWG is operating under a statutory and regulatory regime that grants great discretion to military commanders in enforcing “don’t ask, don’t tell.”  Many commanders will understand the importance of immunity for candid disclosures and will act accordingly if they learn of those disclosures, but some will not.  In order to protect service members from the review process and the information it generates, immunity must be expressly granted under the authority of the statute or its implementing regulations.  Anything short of that exposes gay service members to some risk of separation, notwithstanding the good faith of the PWG.

The Secretary of Defense has authority under § 654 to devise implementing regulations for the enforcement of the policy (“under regulations prescribed by the Secretary of Defense”).  The Secretary has just completed a review of those regulations in an effort to modify enforcement in a manner that is fairer to service members and more legally defensible under the Constitution.  In order to ensure that the PWG gets full, candid information from its ongoing review, the Secretary should also revise the Department’s implementing regulations (DODI 1332.14; DODI 1332.30) to expressly reference the ongoing review and prohibit commanders from using information disclosed as a direct or indirect result of the PWG’s activities to enforce “don’t ask, don’t tell.”  He should issue clear regulatory direction prohibiting commanders from relying on same-sex statements, conduct, or marriages that become known as a direct or indirect result of study activities for purposes of either initiating investigation or supporting separation.  This is the firmest guarantee of protection that DOD itself can make without the involvement of Congress.  Without a change to the regulations that specifically addresses use of this information, the matter is left to an individual commander's discretion.

The implementing regulations already control the use of information by commanders in “don’t ask, don’t tell” proceedings, and therefore this new regulation would not be novel.  The regulations have always prohibited commanders from initiating investigations under § 654 based on information that was not “credible” or was received from sources who were not “reliable,” and the Secretary’s most recent changes further restrict what is considered credible and reliable.  These rules would not be of any help, of course, in controlling misuse of PWG disclosures, because it would be difficult to argue in many cases that the information disclosed was not credible or the sources were not reliable.   The reason the PWG wants to hear the information is because it is credible and reliable.

The clearest authority, of course, to ensure that service members would not be separated from the military as a result of their cooperation with the PWG would be either 1) a suspension/moratorium of the policy approved by Congress or 2) use of the President's "stop-loss" authority by executive order under 10 U.S.C. § 123 and § 12305.

In conclusion, it will be difficult to determine in advance how much the study itself will affect or change the way service members talk about issues of sexual orientation, suggesting that protections from misuse of information should be written as broadly as possible.  This review will generate a substantial level of attention and conversation about “don’t ask, don’t tell” and its effect on the military, inevitably putting people at risk.  Given that no one wants study-generated chatter to lead to unintentional witch-hunts, all stakeholders in this process have an obligation to take whatever steps are within their authority to ensure that individual service members are not placed at risk.

For a pdf version of this report, click here.

March 3, 2010—Research on openly gay service is extensive, and includes over half a century of evidence gathered by independent researchers and the U.S. military itself, as well as the study of the experience of foreign militaries. The U.S. military’s own researchers have consistently found that openly gay service does not undermine cohesion, and the military has repeatedly sought to condemn or suppress these conclusions when they emerged. Yet no research has ever shown that open homosexuality impairs military readiness. This fact has been acknowledged by the Government Accountability Office and by the Pentagon, which has said in response to evidence suggesting that openly gay service works that its policy is “inherently subjective in nature” and is the result of “professional Military judgment, not scientific or sociological analysis.”1 Below are the major research studies on service by gays and lesbians.

1.In 1957, the secretary of the navy appointed a panel to investigate its homosexual exclusion policy. The outcome, known as the Crittenden report, stated that “the number of cases of blackmail as a result of past investigations of homosexuals in negligible” and “no factual data exist to support the contention that homosexuals are a greater risk than heterosexuals.”i

2.In 1988, the Personnel Security Research and Education Center (PERSEREC) commissioned studies that found no evidence showing that gays were unsuitable for military service and suggested that the policy was unnecessary and damaging. The first report pointed to growing tolerance of homosexuality and concluded that “the military cannot indefinitely isolate itself from the changes occurring in the wider society, or which it is an integral part.” It found that “having a same-gender or an opposite gender orientation is unrelated to job performance in the same way as being left- or right-handed.” The second report found that “the preponderance of the evidence presented indicates that homosexuals show pre-service suitability-related adjustment that is as good [as] or better than the average heterosexual,” a result that appeared to “conflict with conceptions of homosexuals as unstable, maladjusted persons.”ii

3.In 1992, the Government Accountability Office conducted its own study of the gay exclusion policy. Its researchers looked at seventeen different countries and eight police and fire departments in four U.S. cities and reviewed military and nonmilitary polls, studies, legal decisions, and scholarly research on homosexual service. The GAO recommended in an early draft that Congress “may wish to direct the Secretary of Defense to reconsider the basis” for gay exclusion.iii

4.In 1993, GAO reported its findings from its study of twenty-five foreign militaries, with special focus on Israel, Canada, Germany and Sweden. According to its final report, “Military officials in all four countries said that the presence of homosexuals in the military is not an issue and has not created problems in the functioning of military units.” A key factor, said the report, was that homosexuals are reluctant to openly admit their sexual orientation even once the ban is lifted.iv

5.In July 1993, Rand researchers at the National Defense Research Institute, a think tank founded by the Air Force, completed a study commissioned by Defense Secretary Les Aspin. Prepared by over 70 social scientists based on evidence from six countries and data analyses from hundreds of studies of cohesion, concluded that sexual orientation alone was “not germane” in determining who should serve. Rand found that “none of the militaries studied for this report believe their effectiveness as an organization has been impaired or reduced as a result of the inclusion of homosexuals.” In Canada, where the ban had just ended, Rand found “no resignations (despite previous threats to quit), no problems with recruitment, and no diminution of cohesion, morale, or organizational effectiveness.” The same conclusions were reached about Israel. The study reported that even in those countries where gays were allowed to serve, “in none of these societies is homosexuality widely accepted by a majority of the population.”v

6.Part of the Rand study examined police and fire departments in several U.S. cities, which it regarded as “the closest possible domestic analog” to the military setting. Rand found that the integration of open gays and lesbians—the status of most departments in the United States—actually enhanced cohesion and improved the police department’s community standing and organizational effectiveness.vi A Palm Center study of the San Diego Police Department in 2001 echoed the finding, adding that nondiscrimination policies in police and fire departments did not impair effectiveness even though many departments were characterized as highly homophobic.vii

7.The U.S. Army Research Institute for the Behavioral and Social Sciences studied the situation and concluded in a report released in 1994 that anticipated damage to readiness never materialized after the ban was lifted: “Negative consequences predicted in the areas of recruitment, employment, attrition, retention, and cohesion and morale have not occurred since the policy was changed.”viii

8.A 2000 report from the UK Ministry of Defence said the lifting of the ban was “hailed as a solid achievement” that was “introduced smoothly with fewer problems than might have been expected.” The changes had “no discernible impact” on recruitment. There was “widespread acceptance of the new policy,” and military members generally “demonstrated a mature and pragmatic approach” to the change. There were no reported problems with homosexuals harassing heterosexuals, and there were “no reported difficulties of note concerning homophobic behavior amongst Service Personnel.” The report concluded that “there has been a marked lack of reaction” to the change.ix

9.In 2000, after Britain lifted its ban, the Palm Center at the University of California, Santa Barbara, conducted exhaustive studies to assess the effects of openly gay service in Britain, Israel, Canada, and Australia. Researchers there reviewed over six hundred documents and contacted every identifiable professional with expertise on the policy change, including military officers, government leaders, academic researchers, journalists who covered the issue, veterans, and nongovernmental observers. Palm found that not one person had observed any impact or any effect at all that “undermined military performance, readiness, or cohesion, led to increased difficulties in recruiting or retention, or increased the rate of HIV infection among the troops.” Palm researchers found that, “in each case, although many heterosexual soldiers [continued] to object to homosexuality, the military’s emphasis on conduct and equal standards was sufficient for encouraging service members to work together as a team” without undermining cohesion.x

10.A 2001 paper in the peer-reviewed journal of civil-military relations, Armed Forces & Society, argues that Israel’s 1993 decision to lift its gay ban did not influence military performance. It then assesses three arguments raised by experts who claim that Israeli experiences are not relevant for determining what would happen if the U.S. Congress and Pentagon lifted the American gay ban. In particular, it assesses the claims that most gay Israeli combat soldiers do not disclose their sexuality to peers, that some receive special treatment, and that cultural differences distinguish the U.S. and Israeli cases. The authors argue that the Israeli experience is not identical to the situation in the U.S., but that its lessons are instructive and lend weight to the claim that American military effectiveness would not decline if known homosexuals were allowed to serve.xi

11.A 2002 article in International Security, “A Modest Proposal: Privacy as a Flawed Rationale for the Exclusion of Gays and Lesbians from the U.S. Military,” argues that lifting the gay ban will not undermine heterosexual privacy. Heterosexual service members already shower with known homosexuals, and according to research, lifting the ban is unlikely to substantially increase the number who come out. Additionally, despite the presence of opposition in the ranks, few heterosexual service members are “extremely uncomfortable” around homosexuals, and discomfort that does exist will diminish after lifting the ban. Finally, same-sex desire and same-sex sexual encounters would occur even if all homosexuals were eliminated from the military. The study also concludes that the ban itself enables systematic invasions of heterosexual privacy.xii

12.A decade after “don't ask, don't tell” was formulated, a study was published in Parameters, the official journal of the Army War College arguing that lifting bans on homosexual personnel does not threaten unit cohesion or undermine military effectiveness. The study was entitled, “Don’t Ask, Don’t Tell: Is the Gay Ban Based on Military Necessity?”xiii

13.In 2005, The U.S. Military Academy at West Point awarded the BG Carroll E. Adams award for best thesis to a paper entitled, “Don’t Ask, Don’t Tell, Don’t Be: A Philosophical Analysis of the Gay Ban in the U.S. Military,” by the cadet, Alexander Raggio. It was the first time a military service academy granted an award to a paper about gays in the military. The thesis argues that “don’t ask, don’t tell” is out of step with the values of the military and the nation, and widens the gap between civilian and military culture. It concludes that the “personal prejudices” and “faulty logic” that undergird the policy “not only fail to meet standards for reasonable policy but undermine the very legitimacy of the institution Army policy should serve.”xiv

14.A January, 2008 article in Armed Forces & Society presents original empirical research to argue that the “don’t ask, don’t tell” policy harms the military’s reputation in several important ways: it is inconsistent with public opinion, it prompts many journalists to criticize the armed forces while attracting almost no favorable media coverage, it provides a vehicle for antimilitary protesters to portray military culture as conflicting with widely accepted civilian values, and it is inconsistent with the views of junior enlisted service members.xv

15.In July 2008, a bipartisan panel of retired flag officers released a report called the “Report of the General/Flag Officers’ Study Group,” that represented what John Shalikashvili called “one of the most comprehensive evaluations of the issue of gays in the military since the Rand study” in 1993. The panel, which studied the issue for over a year by drawing on live and written testimony from experts and a review of literature, found that lifting the ban is “unlikely to pose any significant risk to morale, good order, discipline, or cohesion.”xvi

16.In October 2009, Joint Force Quarterly, a top military journal published for the Chairman of the Joint Chiefs of Staff, published a study entitled, “The Efficacy of ‘Don’t Ask, Don’t Tell’” written by Col. Om Prakash, an active duty officer in the Air Force. The report found “there is no scientific evidence to support the claim that unit cohesion will be negatively affected if homosexuals serve openly.” Based on this research, it concludes that “it is not time for the administration to reexamine the issue; rather it is time for the administration to examine how to implement the repeal of the ban.” The article was selected as the first-place winner of the Secretary of Defense National Security Essay competition.xvii

17.A 2009 study by the University of Florida professor Bonnie Moradi and the Rand researcher Laura Miller, entitled “Attitudes of Iraq and Afghanistan War Veterans toward Gay and Lesbian Service Members,” and published in Armed Forces & Society, was the first-ever statistical analysis of whether openly gay service has any impact on military readiness. The study shows that knowing a gay or lesbian unit member has no bearing on the unit’s cohesion, concluding that “the data indicated no associations between knowing a lesbian or gay unit member and ratings of perceived unit cohesion or readiness.”xviii

18.A 2009 study published in the journal, Military Psychology, has documented the tangible costs of forcing service members to conceal their identities. The study, “Sexual Orientation Disclosure, Concealment, Harassment, and Military Cohesion: Perceptions of LGBT Military Veterans,” is the first empirical analysis of the relationship between sexual orientation concealment and unit cohesion in the military. The study found that sexual orientation disclosure is positively related to unit cohesion, while concealment and harassment are related negatively, meaning they appear to reduce cohesion. This means that the only empirical evidence linking assessing the relationship between open homosexuality and unit cohesion shows the link to be positive, not negative, because of the damage of the closet to the morale and readiness of gay troops, and by extension to the readiness of units.xix

19.Lt. Col. Irene V. Glaeser wrote a study entitled, “Don’t Ask, Don’t Tell: Time for Change,” at the U.S. Army War College as a 2009 Strategy Research Project as part of a paper submitted for a Master of Strategic Studies Degree. The paper cites “exhaustive studies” of both “don’t ask, don’t tell” and the experience of foreign militaries to argue that openly gay service does not impair the military and that current policy “needs to be revised and lifted.” Glaeser states that the U.S. has “entered an era of persistent conflict,” and must be “broad-minded and agile enough to adapt.”xx

20.In Spring 2010, Air University Press, the government-owned publishing arm of the U.S. Air Force, will publish a comprehensive volume on diversity in the Armed Forces. The book, entitled Attitudes Aren’t Free: Thinking Deeply about Diversity in the US Armed Forces, offers a range of perspectives and a framework for improving policy on religious expression, open homosexuality, race, gender, and ethics in the Armed Forces. Palm researchers have written a chapter for the book in light of President Obama’s stated intention to end “don’t ask, don’t tell.” The chapter addresses questions about how best to execute and manage the transition from exclusion of openly gay personnel to inclusion. The Palm chapter addresses the political, legal, regulatory, and organizational steps necessary to ensure that the implementation process goes smoothly.xxi

Please download a pdf version for endnotes.