Legal Commentary

Don?t Ask Don?t Tell and Lesbians

By Eugene Volokh

I thought I?d ask again what I brought up a few years: How can the military?s ?Don?t Ask, Don?t Tell? policy ? or for that matter, any similar exclusion policy ? be justified as to lesbians? As I understand it, the main argument in favor of such a policy for male homosexuals is that in all-male or nearly-all-male combat units the possibility of sexual tension may undermine unit effectiveness. I?m skeptical about this argument, but it at least seems plausible.

Yet that doesn?t seem to apply to lesbians, since presumably they would very rarely be serving in all-female units, and never in all-female combat units. Moreover, even if we set aside antidiscrimination arguments and focus solely on military effectiveness (which may or may not be the right approach, but let?s use it here), it seems lesbians would tend to make better soldiers than straight women:

1. They are less likely to get pregnant.
2. They seem less likely to get sexually transmitted diseases.
3. If the stereotypes about lesbians tending to act in more masculine ways are generally accurate ? hard to tell, for obvious measurement reasons, but that seems to be the conventional wisdom ? then that cuts further in favor of lesbians as opposed to straight women. Many women may well make great soldiers, but if we?re speaking about generalities, and the military policy is generally defended using generalizations, I?m happy to at least tentatively assume (as I suspect would the military) that stereotypically masculine traits and attitudes tend to be more useful for soldiering than stereotypically feminine ones.

Is it just that the military fears that straight soldiers will so dislike lesbians that this itself would cause morale problems? I guess that just doesn?t strike me as that factually plausible.

Is it that the military wants to treat male and female homosexuals equally, for fairness or public relations reasons? That seems odd: Can it really be that discriminating against homosexuals is just fine, discriminating against women (as the military long has done, and still in considerable measure does) is just fine, but discriminating based on sex among homosexuals is wrong, even when there?s a perfectly sensible argument for such discrimination?

Is it that the worry is that having lesbians using communal shower facilities with other women would make the women uncomfortable, because the straight women would be worried about being ogled by the lesbians? I suppose that?s possible, but isn?t that a pretty minor concern, especially given the broad surrender of privacy that is expected in the military?

Or is there something else I?m missing here? By the way, an AP story published by Stars & Stripes in 2009 reports that ?Women accounted for 15 percent of all active-duty and reserve members of the military but more than one-third of the 619 people discharged last year because of their sexual orientation. The disparity was particularly striking in the Air Force, where women represented 20 percent of all personnel but 61 percent of those expelled.?

REQUEST: Could you please focus the discussion in the comments on Don?t Ask Don?t Tell as applied to lesbians, and set aside the unit cohesion arguments related to male homosexuals? Those unit cohesion arguments could be commented on in the comments accompanying Ilya?s ?Unit Cohesion? post.

Full post as published by The Volokh Conspiracy on February 10, 2010 (boomark / email).