Harassment and Discrimination
Sexual Orientation is not a “protected class” in federal law. That means that the normal channels available to raise harassment and discrimination complaints by service members are unavailable to those seeking assistance for sexual orientation harassment and discrimination. Here are some remedies that can be accessed if you are experiencing harassment/discrimination.
Most of these potential methods of bringing a complaint forward can be used if the individual is being harassed based on gender identity but any complaints involving gender identity need legal help before moving forward.
Complaint through Command:
As with most military problems, service members are expected to use their chain of command to address problems before making complaints through other channels. That can be problematic, especially if those in the chain of command are involved in the harassment or indifferent to it. However, in many commands you can report problems via your chain of command and that is the first resource you are expected to use.
Equal Opportunity (EO) Complaint:
Each branch of the service has military equal opportunity (MEO) offices or officers to handle complaints of race, religious, gender-based discrimination and harassment. Because sexual orientation discrimination or harassment is not recognized as discrimination for EO purposes, the MEO may reject a complaint about harassment based on sexual orientation. It is unclear whether MEO will address gender identity issues.
**Inspector General (IG) Complaint: **
Service members may complain to the inspector general of their base, service, or the DoD about harassment/discrimination or a violation of regulations. The inspector general has limited authority to intervene with problems, but the presence of an IG complaint may get the Command to pay attention to the problem. Also, those who report to the IG can be protected as whistleblowers under those regulations. One of the biggest problems with IG complaints is that they will not normally result in immediate action to relieve the situation.
Article 138 Complaint:
Under Article 138 of the Uniform Code of Military Justice, any member of the armed forces who believes himself or herself wronged by his or her commanding officer may request redress. A 138 complaint is a two-step process which begins with a letter to the commander asking for specific redress. If the commander doesn’t grant the request in a reasonable time, a complaint under Article 138 may be made to any commissioned officer, superior to the commanding officer, who is required to forward the complaint to the officer exercising general court-martial convening authority over that commander. That officer must act on the complaint and also report the matter to the Service Secretary.
Article 139 Complaint:
A not common complaint, Article 139 does permit complaints for the willful destruction or unlawful taking of a person’s property. Often complaints regarding property are wrapped into other complaints. However, it is a potential tool.
Members of the military have the right to communicate with their Members of Congress and to ask their help. Often congressional inquiries are no more than communications between a congressional aide and a liaison in the chain of command. However, commands tend to dislike CI because they do take time to address and may draw attention to a particular problem. A congress member has no authority to “fix” a problem, but can draw attention to the situation and sometimes move a command to respond.
Although many service members believe that the media, print media, electronic media, television, etc. are effective ways to address problems, the reality is far different. It is a very risky strategy that no one should take on alone. While the media can draw attention to an issue, once they are involved, the story is out of your control.
In addition, some commands you may be ordered to not communicate with the media. Some units have standing orders limiting or prohibiting service members from communicating with the press. Going to the media should be an option only considered after obtaining legal assistance.
Making a Complaint:
All complaints should be made in the appropriate military format. The services have different regulations governing each of these complaints. There may be time limits on making a complaint and a required format. For example, the Navy has a specific format for Article 138 complaints that Naval personnel must use at Navy Regulation 1150.
You should keep a log/diary of the events that make up the complaint. It should record the “who, what, when and where” of the problem. It should include:
A short narrative description of the specific incident(s)
The date, time and location of the incident(s)
Name of any harasser or a description of the person if you don’t know the name(s)
Names and contact information of any witnesses who observed the harassment or have any facts that can help you complaint.
Any physical evidence, for example, a threatening note, should be preserved.
Handle the item only as necessary to preserve it (for example, putting in a zip lock bag), preferably in the presence of a witness.
Hate Graffiti, such as anti-gay/trans messages written on display boards or walls should be photographed. Again, have a witness who can verify that the photo was taken and that it is accurate.
Any destruction of property should be recorded and witnessed also.
Make copies of any documents you receive, official and unofficial, and keep an extra copy in a safe place, preferably off-base/post/ship. Take photos of the documents as a back-up.
If you are not safe, get immediate help. Worrying about the consequences to your careers is pointless if your physical safety is at issue. That may seem common sense, but physical threats should always be taken seriously and immediately reported to the command, base or service police, the provost marshal, the master of arms, etc.
Do not wait to get assistance if you believe you safety is at risk.