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Military “Don’t Ask, Don’t Tell” Policy. Is It Legal? Research Paper

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Updated: Sep 9th, 2021


For a long time, the rights and opportunities of homosexual men were limited by strict codes and military laws that prohibited anyone who “demonstrates intent to engage in homosexual acts” (Alexander and Hartman 2003, p. 7).”Don’t Ask, Don’t Tell” policy was introduced by President Bill Clinton in 1993. According to the “Don’t Ask, Don’t Tell” policy, “sexual orientation will not be a bar to service unless manifested by homosexual conduct.

The military will discharge members who engage in homosexual conduct” (Alexander and Hartman 2003, p. 10). The aim of this policy is to allow homosexual men to serve the army in spite of their sexual orientation. Thus, this policy is considered illegal because it violates legal norms and the Constitution, and deprives citizens of human rights and freedoms.

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The military can be justified in practicing this policy because the military organization differs greatly from other institutions. The military is an institution that requires enforced intimacy and a lack of privacy. It modified his initial definition of the gay ban issue as a matter of individual rights by arguing, in effect, that individuals had the right to serve-regardless of their sexual orientation–provided that their behavior was acceptable (Bowling et al 2005).

On its face, the definition of the gay ban as an issue in which conduct, rather than status, should take precedence was persuasively alluring. American culture–at least in principle–has always emphasized judging people upon the basis of what they do, rather than upon their socioeconomic or another status in society. In his public discourse on the gay ban, Clinton appealed to this value premise to make his case. “Officially the federal stance was that integration (of blacks, females, and most recently homosexuals) would damage morale, discipline, and good order” (Bowling et al 2005, p. 412). “Don’t Ask, Don’t Tell” Policy can be seen as legal because it allows the military to avoid sex discrimination but protects the institution from homosexual men and women (Alexander and Hartman 2003).

Another advantage of this policy is that it grants gay men a “right to serve” without regard to their sexual orientation. This act allows gay Americans to live their lives free of discrimination (Mohr, 2004). By defining the gay ban conflict in this way, the president could potentially secure two advantages. First, he could portray himself as a leader with traditional American values, rather than as a left-wing Liberal who was beholden to special interests. Second, and related to the first advantage, the issue definition could allow Clinton to transcend partisan attacks from the right-wing (Davis, 1993).

“Don’t Ask, Don’t Tell” policy is an attempt to balance military laws and human rights granted by the Constitution. This policy reinforces high expectations in one camp, only to dash them, and angers those already opposed to a repeal of the gay ban. In many ways, the downfall of the “conduct, rather than status” argument lay in the differentiations the policy attempts to make (Mohr, 2004).

Gays and their supporters cannot comprehend the distinctions of the “don’t ask, don’t tell” policy; for this audience, individuals engage in homosexual sex (behavior) because they are gay men or lesbians (status) (Yarbrough 1993). On the other hand, those morally opposed to a lifting of the ban consider homosexuality or one’s status as derived from freely chosen actions. The factors leading to Clinton’s qualification of his “individual rights” definition are not completely clear (Estes, 2005).

On the other hand, this policy is illegal because it violates legal norms and human rights stipulated by the Constitution. The problem with the argument is that it completely contradicts the worldview held by many citizens adverse to gay rights. For anti-gay-rights adherents, then, this policy is unacceptable (Alexander and Hartman 2003). A person is gay because he or she has engaged in sex with someone of the same gender, which means that status (who the person was) cannot be separated from conduct (what the person does). From this perspective, lifestyle and behavior cannot be differentiated because gay men and lesbians choose to behave in particular ways (Estes, 2005).

The “Don’t Ask, Don’t Tell” policy is illegal because it violates human rights and freedoms of choice stipulated by the Constitution. Thus, the young homosexual will have to go through difficult trials. First, he will have to deny himself and then pretend before others. He will be the object of mockery and abuse if he is effeminate. (I deal with identity disorders further on) (Alexander and Hartman 2003). If his homosexuality is overt, he may be rejected by his family, his teachers, and his peers. When he is not able to repress the object of sexual desire, he will seek it in sordid and marginal places, which may also entail a risk to his physical and mental integrity (Estes, 2005).

Finally, he will become integrated as a person by respecting himself and getting respect from others and may eventually attain pleasant sexuality without any risks. He may even wish to have a steady partner. Clinton attempted to legitimize the “don’t ask, don’t tell” policy as an “honorable compromise,” but his words were often contradictory and at odds with the realities of the policy (Alexander and Hartman 2003).

“Don’t Ask, Don’t Tell” policy is illegal because it forces homosexuals either to remain celibate, and therefore be treated differently than heterosexuals, or to lie about their sex lives. Whatever the reason behind the “conduct, rather than status” issue definition, the argument’s natural conclusion is to open this policy to charges of hypocrisy from one side in the dispute and to allegations of immorality from the other (Alexander and Hartman 2003). Also, the problem is that the US government had never promised to change the Uniform Code of Military Justice, which sounded like a lawyerly appeal to a technicality. The transcendent definitions of the issue had led many citizens to believe that he wanted gays and lesbians in the military to have the same rights as heterosexuals (Alexander and Hartman 2003).

“Don’t Ask, Don’t Tell” policy is illegal because it does not eliminate discrimination but ‘legalizes’ unequal rights between heterosexual and homosexual men. Some involvement in or at least support of political efforts to end discrimination is probably not only necessary at this time for gays in order to sustain the impetus of the movement toward greater acceptance, but also health-producing as a manifestation of solidarity with other gays and as a participation in the social process. With such action and support, gays appropriate their own political destiny — a requirement for responsible citizenship in a free society (Alexander and Hartman 2003).

Efforts to bring the straight world to its knees, to exact “reparations” for past injustices, or to achieve massive political concessions are both unrealistic and counterproductive-not merely because they will not work, but because they concentrate on the sins of the past rather than on present needs and future possibilities. This policy does not allow gay men to assume their rightful place in society as responsible citizens and provide leadership in the gay.

The law states: “The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability” (Policy concerning homosexuality 2006).

Those who now merely, if artfully, verbalize gays’ complaints against the straight world are not likely to be as able to sponsor positive contributions to a saner, more humane world embracing both gays and straights. Most myths and stereotypes have a core of fact; the truth here is that some, if very few, gays are effeminate or mannish, etc. But the major fact is that the great majority of gay men and lesbians are just like everyone else, except for their sexual preferences, and in that difference not so much in kind as in degree.

The policy does not into account the fact that gays as a whole are more gentle and have greater sensitivity than equally representative straights; that is, on matched personality tests, gays frequently (not always) score lower on aggression, and higher on aesthetic awareness, the appreciation of beauty. These factors can disclosure the homosexual orientation of a person and disgrace a military man. This policy is illegal because it does not take into account psychological differences between homosexual and heterosexual men (Alexander and Hartman 2003).

At least with regard to male homosexuality, a man comfortable with his sexual orientation, however large or small an element in his self-awareness, is more open than the macho male (and no doubt his female equivalent) to realms of human experience foreclosed to the latter by the necessity of preserving the image of “he-man” toughness. Self-acceptance and immediate social acceptance are far more important than public proclamations.

Without such acceptance as a foundation of support, public identification will likely be a precarious adventure into the social dynamics of labeling and “deviance.” With acceptance, public declarations may well be unnecessary. Nevertheless, such political coming out often serves a positive purpose in changing general attitudes as well as exponentially raising the vital sense of self-worth among talented, constructively aggressive gays (Davis, 1993).

One of the alternative solutions to the “Don’t Ask, Don’t Tell” policy is to change the Uniform Code of Military Justice and allow homosexual men and lesbian women to service the army. In order to ensure discipline, the code should stipulate norms and rules of behavior similar to those developed for all military staff. Closet gays do not cause feelings of invasion of privacy precisely because they are covert (Alexander and Hartman 2003).

One could argue that homosexuals can be accommodated in the military by rearranging living areas as we already do for men and women. Society could have separate homosexual and heterosexual living quarters. Whatever such arrangements might do in the name of abstract individual rights, they raise more problems than they solve. It boggles the mind to think of the stigmas and nicknames that would accrue to all-homosexual groups. In any event, gay rights advocates have never seriously pushed for this option (Alexander and Hartman 2003; Brouwer, 2004).


In sum, the “Don’t Ask, Don’t Tell” policy is illegal because it violates human rights and equal rights granted by the Constitution, it deepens discrimination and oppression of gay men and lesbian women. One of the major blindness of this policy in considering homosexuality (and sexuality in general) has been the failure to see that the central problem of silence is not the “rectitude” of individual, physical acts, but the structural forces of the societal systems in which men and women must live. This policy underlines that the society and military do not want to accept homosexuals as socially equal citizens: they are still rejected by society and the law.


Alexander, B., Hartman, L. P. (2003). Employment Law for Business (5th edition). McGraw-Hill/Irwin; 4 edition.

Bowling, K.L., Firestone, J.M., Harris, R.J. (2005). Analyzing Questions That Cannot Be Asked of Respondents Who Cannot Respond. Armed Forces 31, 411–437.

Brouwer, D.C. (2004), Corps/Corpse: The U.S. Military and Homosexuality. Western Journal of Communication 68, 411-430.

Davis, Ch. (1993). Lifting the Gay Ban. Society, pp. 24-28.

Estes, S. (2005). Title:Ask and tell: gay veterans, identity, and oral history on a civil rights frontier. The Oral History Review 32, p. 21-27.

Mohr, R.D. (2004). Equal Dignity Under the Law, The Gay & Lesbian Review / WORLDWIDE, pp. 30-35.

Policy concerning homosexuality in the armed forces. (2006). U.S. Code Collection. Web.

Yarbrough Jeff. (1993). The life and times of Randy Shilts. The Advocate, 32, pp. 34-39.

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