Biden offers gay vets clemency following green light for Defense Department lawsuit
President Joe Biden said he was using his clemency authority to pardon LGBTQ service members who were convicted of violating the military policy against homosexuality. This comes less than a week after a magistrate judge ruled a lawsuit against the Department of Defense over the discharges of gay veterans could move forward.
Biden issued a statement on X Wednesday morning announcing the decision.
https://twitter.com/POTUS/status/1805973047184130093
"Today, I am righting an historic wrong by using my clemency authority to pardon many former service members who were convicted for simply being themselves," the statement read. "Despite their courage and great sacrifice, thousands of LGBTQI+ service members were forced out of the military because of their sexual orientation or gender identity."
READ MORE: After Six Decades, Lesbian Veteran’s Military Discharge Finally Upgraded to ‘Honorable’
In this case, clemency only applies to those who were convicted or court-martialed.
While in 1993, the "Don't Ask, Don't Tell" policy went into effect, LGBTQ service members could serve while in the closet. Their superiors could not ask if they were gay, but they could not disclose it themselves, either. Those who came out would be discharged, usually with other-than-honorable discharges.
However, sodomy was still criminalized in the U.S. military, meaning that service members could be court-martialed and convicted if they had homosexual sex. Biden's order affects these service members.
The order will also apply to service members who have since died, according to NBC News.
This follows the ruling on Friday from Magistrate Judge Joseph C. Spero that a lawsuit filed by five LGBTQ veterans against the DOD could proceed. The five veterans were suing to upgrade their discharges to honorable and remove all references to sexual orientation from their discharge paperwork.
Veterans who were given other-than-honorable discharges face a number of hurdles. They are unable to re-enlist, even now that the rule they violated is no longer in effect. They are also blocked from accessing services from the Department of Veterans Affairs.
In February, the DOD said it was working to upgrade LGBTQ veterans' discharges to honorable. However, it didn't provide a timeline. Up until that point, veterans had to explicitly petition the government to have their discharge paperwork updated. The update process was described in the suit as “burdensome, opaque, expensive, and for many veterans virtually inaccessible.”
In 2011, the year "Don't Ask, Don't Tell" was lifted, the memorandum doing so said that it was unnecessary to automatically update discharge paperwork for vets thrown out by the policy. However, it was only two years later when the Uniform Code of Military Justice was updated to remove its ban on sodomy.
Biden's statement did not reveal a number of service members who would be affected by his order. According to the lawsuit, over 35,000 members of the U.S. military had been discharged under the ban on homosexuality between 1980 and 2011.
Biden's clemency order falls on the 9th anniversary of the landmark 2015 Supreme Court decision in Obergefell v. Hodges legalizing same-sex marriage in the United States.