Section by Section Analysis of the Military Readiness Enhancement Act (HR 1283)

Section 1. Short Title. Section 1 provides the short title for the legislation. The “Military Readiness Enhancement Act” is the title of this legislation.

Section 2. Purpose. Section 2 identifies the purpose of the legislation, which is to repeal 10 U.S.C. 654 and replace it with a new policy of non-discrimination based on sexual orientation in the Armed Forces.

Section 3. Repeal of 1994 Policy Concerning Homosexuality in the Armed Forces. This section repeals the current law, 10 U.S.C. 654.

Section 4. Policy of Non-Discrimination Based on Sexual Orientation in the Armed Forces.

(a). Establishment of Policy. This section establishes a new law prohibiting sexual orientation discrimination in the Armed Forces.

(1). This section provides for a policy of non-discrimination based on sexual orientation in the Armed Forces, to be titled 10 U.S.C. 656.

(a) Policy. Subsection (a) provides the new policy statement, prohibiting sexual orientation discrimination within the Armed Forces and among people seeking entry into the Armed Forces.

(b) Discrimination on the Basis of Sexual Orientation. This subsection provides a non-exclusive list of what constitutes discrimination on the basis of sexual orientation in the Armed Forces. For current members of the Armed Forces, this section includes within the definition of sexual orientation discrimination any personnel or administrative action taken in whole or in part on the basis of sexual orientation. For applicants for military service, denial of accession made in whole or in part on the basis of sexual orientation constitutes sexual orientation discrimination.

(c) Personnel and Administrative Policies and Action. This section prohibits the Secretary of Defense, and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating under the Navy, from establishing, implementing or applying any personnel or administrative policies, or taking an personnel or administrative action, in whole or in part on the basis of sexual orientation. It is designed to prevent the military from re-instituting discriminatory policies once “Don’t Ask, Don’t Tell” is repealed.

(d) Rules and Policies Regarding Conduct. This language is modeled on ENDA’s Section 11(a), “Construction: Employer Rules and Policies.” It is intended to clarify that nothing in the legislation will prevent the military from continuing to regulate the conduct of its members, as long as any such regulation is written and enforced in a sexual orientation-neutral manner.

(e) Re-accession of Otherwise Qualified Persons Permitted. This language provides the opportunity for persons discharged for homosexuality or homosexual conduct under “Don’t Ask, Don’t Tell” or its predecessor regulations to re-apply for entry into the Armed Forces. The “otherwise qualified” language makes clear that there is no absolute right of re-entry for anyone discharged under “Don’t Ask, Don’t Tell” or the predecessor regulations. For example, age and physical requirements to re-enter the military would still be applied to persons who wished to re-enter the Armed Forces under this provision.

(f) Sexual Orientation. Sexual orientation is defined as “heterosexuality, bisexuality, or homosexuality, whether the orientation is real or perceived, and includes statements and consensual sexual conduct manifesting heterosexuality, homosexuality, or bisexuality.” This first part of this definition is fairly standard, and consistent with most state law definitions of sexual orientation. It is consistent with although broader than the only current federal statutory definition of sexual orientation, which appears in 28 U.S.C. 534, the federal hate crimes reporting statute. This definition is “consensual homosexuality or heterosexuality.”

The second part of the definition is meant to ensure that the gap created between status and conduct through the “Don’t Ask, Don’t Tell” policy will not persist beyond the policy’s repeal. Military discharges based on statements of sexual orientation or conduct manifesting homosexual or bisexual orientation form the basis of “Don’t Ask, Don’t Tell.” The distinction is cemented in case law challenging the ban on constitutional grounds. Without the second part of this definition, it is possible Defense Department officials could effectively continue a policy of discriminating based on statements or conduct, versus sexual orientation per se.

(2). Section 4 subsection (a)(2) provides the necessary changes to the table of contents to reflect the deletion of 10 U.S.C. 654 and the addition of 10 U.S.C. 656.

(b). Conforming Amendments. Section 4 subsection (b) provides the conforming amendments required by the new legislation.

(1). Subsection (b)(1) adds sexual orientation discrimination to a list of issues statutorily mandated for quadrennial surveys by the Department of Defense.

(2). Subsection (b)(2) modifies the Solomon Amendment to remove the reference to 10 U.S.C. 654 and related laws. It is unclear whether the Solomon Amendment will have any relevance once the current Section 654 is repealed. However, the consequence of leaving 10 U.S.C. 983 as it is would be the possibility that certain schools might prohibit military recruiters from their campuses because of the military’s new policy of non-discrimination based on sexual orientation.

(3). Subsection (b)(3) adds sexual orientation to the definition of “unlawful discrimination” in the code provision prohibiting retaliatory personnel actions.

Section 5. Benefits. This provision makes clear that this legislation does not require the military to provide dependent benefits in violation of the Defense of Marriage Act.

Section 6. No Private Cause of Action for Damages. This section makes clear that this legislation does not create a private cause of action for damages.

Section 7. Regulations. This section provides the authority to issue regulations implementing this legislation and gives guidance as to the content of those regulations.

(a). In General. The Secretary of Defense has 90 days following enactment of the legislation to issue Department of Defense regulations implementing the legislation, and must direct each service to revise its regulations no later than 180 days after the enactment of the legislation. Regulations which must be amended include but are not limited to:

(1). All Equal Opportunity and Human Relations regulations, directives, and instructions and training guidance;
(2). Personnel regulations governing involuntary discharges;
(3). Victim’s advocacy regulations to include sexual orientation discrimination
among the forms of discrimination for which members of the Armed Forces and their families may seek assistance. This provision is intended to ensure that victims of sexual orientation-based hate violence and sexual orientation discrimination can access Victims’ Advocacy programs to the same extent that other victims of prohibited discrimination and hate violence can.

(b). Regulation of Conduct. This provision mandates the regulations
governing service members’ conduct be written and enforced without regard to sexual orientation. It is essentially a reiteration of Section 3 (c), but we think it is important that this concept appear in both the policy section and the regulation section of the legislation as a political matter.

(c). Definition. This section provides reference to the new 10 USC 656(f) for the definition of sexual orientation.