A legal challenge filed against the Defense Department by a group of LGBTQ veterans who were fired under a long-standing military policy that barred them from serving openly will move forward after a federal judge denied the Pentagon’s motion to fire her.
Five LGBTQ veterans filed the class-action lawsuit last summer in the U.S. District Court for the Northern District of California, arguing that the Department of Defense violated their constitutional rights by failing to upgrade them to honorable discharges after revoking their “Don’t Ask, Don’t” don’t say” (DADT), who fired them with less than honorable discharges more than a decade ago.
Separation documents awarded to veterans discharged under DADT due to their real or perceived sexual orientation denote their sexuality as the reason for their discharge, which plaintiffs argue violates their privacy. The discharge documents also deprive LGBTQ veterans of certain benefits, such as a veteran designation on their state ID or driver’s license and some military discounts, according to the lawsuit.
Although veterans can request correction of their discharge documents, plaintiffs argue the process is time-consuming and burdensome.
Pentagon lawyers sought to dismiss the suit, citing 2011 internal policy guidance that instructed military corrections boards to grant veterans’ requests for discharge upgrades after the repeal of DADT. The guidance noted, however, that “broad, retroactive corrections to the records of applicants dismissed under DADT are not warranted.”
The corrections boards reviewed “more than 1,683 veteran requests for record correction and granted relief to more than 1,406 former service members who, like the Plaintiffs here, were discharged in accordance with DADT policies,” the department wrote. in his motion to dismiss.
U.S. Magistrate Judge Joseph C. Spero rejected that request Thursday night, ruling that the plaintiffs will likely prove that the department violated their right to equal protection under the Fifth and 14th Amendments by failing to systematically correct the paperwork of all veterans discharged under DADT and similar policies.
At a motion hearing in February, Pentagon lawyers argued that the rules and procedures governing the department’s records correction process are indiscriminate.
Spero said Thursday he disagreed, and the military’s decision to leave discharge documentation unchanged for LGBTQ veterans discharged under DADT “was motivated by discriminatory intent.”
He wrote in his decision that the plaintiffs will also likely be able to argue that the Defense Department’s actions violated their rights to substantive and procedural due process.
The plaintiffs’ allegations, he wrote, are sufficient to “raise a plausible inference” that the department’s conduct was intended to harm in some unjustifiable way any governmental interest, “namely, to perpetuate discrimination against the plaintiffs on the basis of their sexual orientation or sexual perception.” guidance even after they were unfairly discharged from the military on that basis.”
The Defense Department did not immediately return a request for comment.
In recent years, the department has taken steps to correct discharge designations given to LGBTQ veterans who served under DADT. Last year, it said it would proactively review the military records of veterans who received less than honorable discharges because of their sexual orientation.
A resolution introduced by Senate Democrats earlier this week would formally apologize for past actions that discriminated against LGBTQ service members and federal employees, including DADT, which was repealed in 2011.
Attorneys for the veteran plaintiffs celebrated Thursday’s ruling in a joint statement.
“This decision allows us to move forward in rectifying the discriminatory effects of Department of Defense policies, ensuring that LGBTQ+ veterans receive the honor they rightfully deserve, having served our country with dignity and integrity,” Impact Fund attorneys, Legal Aid at Work and King & Spalding LLP said in the statement.
“This decision is especially significant because it comes during Pride Month, a time when we celebrate progress and recognize the ongoing fight for LGBTQ+ rights,” they added. “These brave veterans served our country with honor and we look forward to ensuring the justice they rightfully deserve.”
This story originally appeared on thehill.com read the full story
