Last Thursday, an amendment repealing “Don’t Ask, Don’t Tell” was attached to the annual defense-authorization bill, which then went on to pass the House (the Senate’s likely to vote mid-month). But amid all the hoopla over finally making progress on overturning the seventeen-year ban on open service by gay troops, one aspect of the repeal measure went largely unnoticed: the lack of a nondiscrimination mandate. What that means is, if or when DADT is dismantled — which can’t happen until next year, as the amendment allows an ongoing Pentagon review of the policy to conclude first (it’s expected to end in December) — there’ll be no legal mechanism to prevent anti-gay discrimination. Leading activists like Aubrey Sarvis, head of Servicemembers Legal Defense Network, have said they’ll push President Obama to issue an executive order banning discrimination — but as it turns out, an executive order already exists that does just that. In 1998, President Clinton added sexual orientation to a longstanding executive order barring discrimination in the federal workforce, except where prohibited by law.
According to attorney Richard Socarides, a Clinton-era White House adviser, this executive order should apply when the DADT law is officially off the books. “When the federal statute is repealed, if you read that executive order and give it a plain meaning, it’s going to apply to the military,” Socarides says. “But I would still urge President Obama to make it perfectly clear by amending that executive order again” to specifically prohibit discrimination against gay troops. Likewise, Pentagon regulations will have to incorporate explicit nondiscrimination language. “That’s going to be essential in order to carry repeal out,” Socarides adds. “It’s also important from a leadership perspective that Gates and Mullen send a clear message on this: that it’s the right thing to do and it’s consistent with the values of the institution.”
While Socarides dismisses as unlikely any scenario in which a future, less LGBT-friendly president removes sexual orientation from the standing executive order — “we’re on a path that’s destiny, and it would be hard to go back” — it’s nonetheless a legal possibility that some other gay advocates fear. “Nondiscrimination is at the core of what we’re fighting for, and having given that up as the cornerstone of this compromise was probably an unnecessary concession,” Socarides observes. “And certainly an unfortunate one.”