SPOKANE, Wash. – Air Force flight nurse Margaret Witt was stunned in 2004 when she was discharged from the military for “homosexual conduct” after decades of serving the American people. Witt decided to press her case in court, arguing that the ‘Don’t Ask, Don’t Tell’ law which forced LGBTQ+ service members to remain in the closet violated their constitutional rights. Her decision changed the course of American history and is still affecting US Department of Justice policy today.
The history of “Don’t Ask, Don’t Tell” begins with Arkansas Governor Bill Clinton.
While running for president in 1992, Clinton faced a political problem. He needed the support of LGBTQ+ voters, who were a small but However, Clinton also needed the backing of conservative military leaders suspicious of civil rights organizing.
The outcome of this tension after he became president was ‘Don’t Ask, Don’t Tell,’ a 1993 bill which required decriminalized homosexual conduct but required LGBTQ+ military members to remain closeted or be dismissed from service.
“Under ‘Don’t Ask, Don’t Tell,’ you had the burden of proving that you weren’t [LGBTQ+] based upon what they had read, heard or somebody had said,” Witt explained.
‘Don’t Ask, Don’t Tell’ was meant to create forward progress on LGBTQ+ rights in the military, given that the previous policy was an absolute ban on gay, lesbian and transgender service members. The practical impact of the law was the continued silencing of queer people in the military, who still couldn’t live openly and could be terrorized with threats of being outed to their superiors by fellow officers.
Witt, a Washington native who lived in Spokane for several years, was discharged from the military under ‘Don’t Ask, Don’t Tell’ after being forcibly outed.
“I was walked down the hall into the commander’s conference room, and there was a JAG officer who said, ‘well, what’s your relationship with this individual?’ I just said we were roommates…It was so simple for the military that he just slid a piece of paper across the table and said, ‘if you sign here, you’ll be out in two weeks.’ And that’s how people were just disappearing from the military,” Witt said.
Rather than accepting the dismissal, Witt took the issue to court with the American Civil Liberties Union. In May 2008, Witt won her case, with the Ninth Circuit Court of Appeals ruling that her dismissal violated her due process rights.
Notably, she did not win the case because the court ruled it was unjust to expel LGBTQ+ people from the military, but rather because the military couldn’t prove that removing Witt was necessary to “maintaining morale, unit cohesion, and good order and discipline in the Armed Forces.”
Witt attributed the support of her Air Force unit and legal team in winning her court case.
“I’m standing on the shoulders of all those who came before me, and I’m well aware of the history of all those who were brave enough to fight,” Witt said.
For the next two years, ‘Don’t Ask, Don’t Tell’ remained the law of the land despite Witt being reinstated as an officer and retiring honorably as a major.
But by the late 2000s, the national dialogue was changing. In 1996, only 27% of Americans supported marriage equality according to Pew data. By 2009, that number had jumped to 37% and was rising rapidly. ‘Don’t Ask, Don’t Tell’ was repealed in 2010. President Barack Obama signing the law at a large White House celebration illustrated just how much the Democratic Party and American public had shifted on LGBTQ+ issues since the mid-’90s.
It was an exciting few years for Witt, who obtained her marriage license at the Spokane County Court House in 2012 alongside her wife Laurie Johnson on the day that same gender marriage became legal in Washington state.
“It was a true triumph in feeling whole and feeling humanized. In fact, our friends had that photo blown up and framed, and that was our guest book, and that’s up in our house. It’s a really wonderful memory,” Witt said.
The US Supreme Court would rule in favor of marriage equality in 2015, securing the right to marry for queer couples across the US.
The impact of Witt’s legal challenge to ‘Don’t Ask, Don’t Tell’ remains significant. Her case established the ‘Witt Standard,’ which requires the military to demonstrate that an officer’s dismissal is necessary for unit readiness and morale.
After the repeal of the discriminatory law, the US Department of Defense (DOD) also had a new problem to face–how to redress unfair dismissals of gay, lesbian and transgender officers.
Under the Biden Administration, Secretary of Defense Lloyd Austin ordered a proactive review of the records of officers discharged under ‘Don’t Ask, Don’t Tell.’ As of Oct. 15, the DOD says the vast majority of the 13,000 cases of LGBTQ+ people being forced to leave the military under the policy have been reviewed and resolved.
“After a year of exceptional work, the Military Department Review Boards directed relief in 96.8% of the 851 cases that they proactively reviewed…Of the nearly 13,500 individuals who were administratively separated…96% now have an honorable discharge,” a DOD announcement said.
Kim Pearson, a professor of law at Gonzaga University, views the DOD review as progress, but noted that it can’t repair all of the damage caused by the policy.
“You can’t actually undo some of the harms, because you can’t go back in time and give people back opportunities that they lost, like the ability to use an educational benefit, trying to apply for jobs with a dishonorable discharge on your record, or trying to get a loan to buy a house,” Pearson said.
Witt echoed Pearson’s view on the ‘Don’t Ask, Don’t Tell’ changes, and highlighted that queer officers dismissed from service before the ‘90s under criminal law were not included in the DOD review.
“It goes back to the fact that we have all served for generations, and we have served honorably…I hope that those who were discharged [under criminal law] will go through the pardon process,” Witt said.
Witt and Pearson are also concerned for the future. Under the Trump Administration, transgender people were banned from military service, threatening trans and gender non-conforming officers.
Pearson worries that an increasingly virulent anti-LGBTQ+ movement in the US could rewind the clock for queer people, both in the military and more broadly across the country.
“It would be disingenuous of me to say that there’s nothing to worry about…if you don’t fight to protect them, your rights are always at risk. has brutally changed the landscape. And it’s baffling to me that half of our population can lose fundamental rights in a fell swoop,” Pearson said.
Former White House Chief of Staff and Secretary of Homeland Security John Kelly, who purportedly opposed Trump’s ban of transgender servicemembers, told The New York Times that a second Trump term constituted a threat to LGBTQ+ civil rights and national security more broadly.
Ultimately, Pearson argued that advocates should respond to the demonization of gay, lesbian, transgender and non-conforming people by humanizing the issue.
“Humanization is critical. Helping people realize that we’re all just trying to do the best we can. If you don’t humanize the people for whom you’re advocating, it’s way too easy to demonize and create a lot of fear, anger and resentment,” Pearson said.
Those who were dismissed or penalized during their military service for their sexuality or gender identity can still seek a discharge upgrade with their respective branch of service and seek legal counsel.
