‘Long-Overdue Justice’: Settlement Paves Way for Upgrades, Benefits for Thousands of LGBTQ Veterans Agreement Could Clear Records for 30,000 Gay and Lesbian Service Members from 1980 through 2011

For decades, tens of thousands of gay and lesbian veterans have carried the frustration and shame of being kicked out of the military because of their sexual orientation. Recent efforts helped a small number of these veterans receive discharge upgrades, making them eligible for long-denied benefits. 

Now, for the first time, relief will finally be widespread.

About 30,000 LGBTQ veterans could potentially benefit from a settlement in a class-action lawsuit reached Friday between the Defense Department and attorneys representing veterans discharged for their sexual orientation. Advocates celebrated the agreement that paves the way for VA benefits and upgraded discharges after similar gestures last year by the Biden Administration to right “an historic wrong” fell short.

“This proposed settlement delivers long-overdue justice to LGBTQ+ veterans who served our country with honor but were stripped of the dignity and recognition they rightfully earned,” said Jocelyn Larkin, one of the attorneys who helped negotiate the settlement with the Pentagon.  

The agreement ends a legal battle that started in August of 2023. That’s when Larkin and a team of attorneys filed a class action lawsuit against the Department of Defense and military branches, arguing that the military discriminated against more than 30,000 service member embers by including their sexual orientations as the reason for their dismissal on their discharge papers. Attorneys argued that once the repeal of ‘don’t ask, don’t tell’ took effect in 2011, the DOD should have scrubbed military records of the anti-LGBTQ policy.  

‘Don’t ask, don’t tell,’ which was signed into law in 1994, allowed gay service members as long as they concealed their sexuality. Still, thousands were outed, even hunted down, and ultimately booted from the military as they had been since the 1940s. In thousands of cases, discharge papers, known as DD214s, included a service member’s sexual orientation as the reason for their dismissal.

For decades, many were denied veterans benefits, like healthcare, and endured lasting mental and emotional scars, a topic The War Horse has written about in-depth. 

Since 2012, the Defense Department has offered a way for veterans kicked out under ‘don’t ask, don’t tell,’ to apply for a discharge upgrade. But the process was “appallingly difficult,” says Larkin. It required a veteran to request military records and gather evidence for their case, a process that could take two to three years. 

The settlement, Larkin says, greatly simplifies the process, and for a portion of gay and lesbian veterans—about 5,000 to 7,000 who received an other than honorable discharge between 1980 to 2011—it will yield a significant impact: The Pentagon will now collect all military records and submit paperwork to military review boards for those veterans who request a discharge upgrade. The process will likely begin this summer with a three-year window for veterans to seek relief. 

Most of the other veterans who are part of the lawsuit were honorably discharged but will now have a simple way to erase any mention of their sexual orientation from their discharge paperwork.

The Defense Department initially tried to get the class action lawsuit dismissed, but ultimately agreed to negotiate a settlement.

In 2023, Secretary of Defense Lloyd Austin announced the department would proactively review the discharges of veterans under “don’t ask, don’t tell.” Last fall, Austin concluded the review and stated that about 850 veterans would receive discharge upgrades. 

Larkin, who is an attorney with Impact Fund, says that while the Defense Department had in the past argued that such proactive reviews took too much time and resources, Austin’s action “took away their whole argument.” 

Still, thousands of LGBTQ veterans dating back decades could still be waiting for relief. Advocates say discharge records, particularly in the 1980s and earlier, were intentionally vague, with no mention of a service member’s sexual orientation as the reason they were kicked out of the military. They won’t be covered by the settlement.

That includes Mona McGuire, an Army veteran who in 1988, at 20 years old, was outed as a lesbian, interrogated by the Army’s criminal investigation division, and kicked out of the military. Her exit paperwork lists the reason for her discharge as “for the good of the service in lieu of court martial.” Nowhere does it indicate her sexual orientation as the catalyst. 

Larkin says when filing the class action lawsuit, attorneys had to find a clear, objective way to get their arms around how many veterans were discriminated against. Sexual orientation indicated on exit paperwork proved the most logical and effective way to do that. Through a FOIA request, the Defense Department found 35,000 veterans who fit that parameter between 1980 to 2011. Veterans like McGuire who lack that specificity on their discharge papers, known as DD214s, are not considered part of the “class” that can now seek relief.

When McGuire, who lives in suburban Milwaukee, heard about the settlement, she assumed it may not extend to her. Over the last several months, that’s been the reality—again and again. This past summer, when President Biden announced pardons for gay veterans who were convicted for having same-sex relationships, she at first rejoiced, only to discover she didn’t qualify since her case never went to court martial. Because of the narrow confines of the pardons, as of December, The War Horse found only 14 veterans have applied.

It’s unclear how many gay service members were court-martialed, and in September, The War Horse filed a lawsuit that compels each branch of the military to turn over those records.

Even before the pardons, McGuire’s attempt to upgrade her discharge by applying to a military review board was denied, a decision she’s appealing with the help of an attorney with the pro bono The Veterans Consortium.

Ana Maria Bondoc, a staff attorney with The Veterans Consortium, says while the settlement is a significant milestone in the quest for justice, McGuire is “a prime example of those who will be left behind,” and, she says, “every victory is hard-won and a reminder of the work still to be done.”

Though McGuire is not benefitting from the settlement, she’s heartened that others will, and she’s trying to take the long view as she awaits a decision on her latest appeal. “I’ve been going through this for 30 years,” she says. “What’s a few more years.”

Larkin, meanwhile, says the terms of the settlement still must be approved by the U.S. District Court of Northern California, a process that will take up to three months. 

She hopes, even with President Donald Trump’s return to the White House, all the momentum around this issue—from Biden’s pardons to the recent settlement—will continue, and relief may one day come to all who seek it.

“Let’s just put this injustice in the past,” she says.

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This War Horse story was reported by Anne Marshall-Chalmers and edited by Mike Frankel.

The War Horse