The Pentagon is seen on Oct. 21, 2021. A federal court has refused to dismiss a class-action lawsuit brought against the Defense Department by more than 35,000 LGBTQ+ veterans who claim they were wrongfully discharged because of their sexual orientation.  

The Pentagon is seen on Oct. 21, 2021. A federal court has refused to dismiss a class-action lawsuit brought against the Defense Department by more than 35,000 LGBTQ+ veterans who claim they were wrongfully discharged because of their sexual orientation.   (Robert H. Reid/Stars and Stripes)

WASHINGTON — A federal court in San Francisco has refused to dismiss a class-action lawsuit brought by more than 35,000 LGBTQ+ veterans against the Defense Department, claiming they were wrongfully discharged because of their sexual orientation and often disqualified for veterans benefits.

Attorneys representing the veterans described the court decision as a “major milestone for veterans wrongfully discharged.”

About 30,000 veterans out of more than 35,000 discharged because of sexual orientation received ratings below honorable, according to the lawsuit.

The plaintiffs are seeking discharge status upgrades and the removal of information about sexual orientation from military records and discharge paperwork, according to the complaint.

The case, filed in August 2023, is being heard in the U.S. District Court for the Northern District of California.

The class-action lawsuit was filed on behalf of veterans discharged from the armed forces because they were LGBTQ+ — lesbian, gay, bisexual, transgender, gender non-conforming, nonbinary and intersex, according to the complaint.

Joseph Spero, a U.S. magistrate judge, denied the Defense Department’s motion to dismiss the case last week and has ordered the parties to meet again July 14 for a case management conference.

The military ended its ban more than a decade ago on individuals who were gay or lesbian from service.

The veterans who are plaintiffs largely were discharged from duty under the “Don’t Ask, Don’t Tell” policy implemented by the Defense Department in 1994 and repealed in 2011.

Under the policy, the military was barred from taking actions against service members who were LGBTQ+ as long as they did not publicly disclose or reveal their sexual orientation.

LGBTQ+ veterans discharged later were denied many benefits and services unless they sought corrective action through a character of service review for benefits eligibility, according to the lawsuit.

Determinations are made by the Discharge Review Board or Board for Correction of Military Records for each veteran’s branch of service.

“Plaintiffs suffer new injuries attributable to defendants each time they must present their paperwork disclosing their sexual orientation to obtain benefits or are unable to access benefits that would have been available to them” if they had received honorable discharges, the court wrote in its opinion.

The lawsuit states the discharge paperwork of the veterans identifies their “actual or perceived sexual orientation as the reason for their discharge,” discharged them with ranks below an honorable discharge and banned them from reenlisting in the armed forces.

Because the reason for discharge stays in their military records, veterans continue to face invasion of privacy, denial of access to benefits and barriers to hiring, the lawsuit claims.

“These veterans have been forced to carry official yet discriminatory paperwork from the U.S. government that unnecessarily indicates their sexual orientation any time they try to prove their status as veterans,” according to a statement from the Impact Fund, Legal Aid at Work and King & Spalding, which represent the veterans.

Plaintiffs named in the lawsuit are Navy veteran Sherrill Farrell of Texas, Army veteran Steven Egland of Michigan, Navy veteran James Gonzales of California, Marine Corps veteran Jules Sohn of California and Navy veteran Lilly Steffanides of California.

All five were discharged from the military because of their sexual orientation, according to the lawsuit.

The veterans in the case declined Monday to comment through their attorneys.

The Defense Department argued the court should dismiss the case because the discharges were more than 6 years old. The department cited a provision under the Little Tucker Act, citing a general six-year statute of limitations for pursuing a claim against the United States.

The Defense Department also argued it announced plans to review cases of veterans whose separations were the result of their sexual orientations and received less-than-honorable discharges.

In refusing to dismiss the case, the court supported the veterans’ argument that they continue to be discriminated against because the process for obtaining an honorable discharge is lengthy, traumatizing and burdensome.

Honorable discharges entitle veterans to health care benefits, college loans through the GI Bill and assistance with home loans and other housing support.

The veterans assert they were denied equal protection under the Fifth and 14th amendments based on the inclusion of sexual orientation information on their discharge paperwork that was not required of other service members.

The lawsuit seeks the removal of “narratives and separation codes” that disclose the veterans’ sexual orientation and seeks upgraded discharge statuses for veterans who were discharged under the “Don’t Ask, Don’t Tell” policy and similar policies that preceded it.

The lawsuit also states though the VA has stated it would no longer deny benefits to veterans with less-than-honorable discharges based on sexual orientation, gender identity or HIV status, the policy has yet to be implemented.

“The government’s continued failure to remediate the discriminatory effects … on nearly every aspect of a veteran’s life after service, constitutes ongoing discrimination and a deprivation of these veterans’ constitutional rights,” according to the lawsuit.

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Linda F. Hersey is a veterans reporter based in Washington, D.C. She previously covered the Navy and Marine Corps at Inside Washington Publishers. She also was a government reporter at the Fairbanks Daily News-Miner in Alaska, where she reported on the military, economy and congressional delegation.

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