When Shannon McLaughlin was asked in 2010 to be the lead plaintiff in a federal lawsuit demanding that partners and family members of LGBTQ military service members and veterans receive the same benefits as those of heterosexual service members, it was far from an easy decision.
Speaking recently at this year’s Disabled American Veterans (DAV) Distinguished Lecture at Harvard Law School, McLaughlin noted that she was a Major and Judge Advocate General in the Massachusetts National Guard at the time. She had been investigated multiple times under Don’t Ask, Don’t Tell (DADT)—the discriminatory policy that prevented LGBTQ service members from serving openly in the military—and was able to remain in the military, even after admitting she was lesbian.
“We just don’t sue our employers”
When the lead plaintiff request came, she remembers thinking: “In the military, we just don’t sue our employers,” she said.
But McLaughlin—who today is a Lieutenant Colonel and the State Judge Advocate for the Military Division of the Commonwealth and a Command Judge Advocate in the Massachusetts National Guard—realized that she was in a far better position than many others to take on the role of lead plaintiff.
While she and her partner had children, McLaughlin understood that if she lost her job as a result of the lawsuit, she had a professional degree and could pursue a career as a lawyer in the private sector. She had the support of her partner, and her family and friends. “I thought of all those who didn’t have the luxuries that I had to be the lead plaintiff. And so I agreed.”
Seizing the moment
The lawsuit was filed by the Servicemembers Legal Defense Network immediately after the repeal of DADT in 2011. Its goal: to ensure that the spouses of gay and lesbian service members and veterans had access to the same health, dental, housing, commissary, counseling and other services that the spouses of non-LGBTQ service members have.
As multiple lawsuits filed to repeal the Defense of Marriage Act (DOMA) gained widespread national media attention, McLaughlin’s lawsuit challenged the constitutionality of DOMA with respect to military and veterans’ benefits for same-sex spouses and their families.
“It was important once DADT was repealed to seize on the momentum” that DADT’s repeal and the lawsuits against DOMA created, she told the group assembled at Harvard Law School to hear her speak. Within 24 months, DOMA was struck down by the Supreme Court and her case was settled favorably as well.
Fighting for LGBTQ rights in the military for 20 years
Serving as lead plaintiff was far from the first or last experience McLaughlin has had fighting for LGBTQ rights during her 20 years in the military, which has included time in both the Navy and Army and deployment to the Mediterranean and the Middle East. A graduate of Boston College Law School, she has actively led on issues impacting women and LGBTQ service members throughout her career and currently serves as a member of the Veterans Affairs (VA) Advisory Committee on Women Veterans, an expert panel that advises VA’s Secretary on issues and programs impacting women veterans.
In her speech, she talked about the compromises she had to make while serving in the military under Don’t Ask, Don’t Tell. The rule’s effects reverberate for LGBTQ veterans today.
“You had to keep quiet…hide your personal life…hide yourself, or lose your job,” she said. You couldn’t “act too gay” or “leave the wrong establishment.”
In the military, developing unit cohesion is a vital way that soldiers come together to make sacrifices and succeed at their overall missions. For heterosexuals in the military, unit cohesion develops in part by talking with your fellow soldiers about things going on in your life, she observed. But if you were prohibited by Don’t Ask, Don’t Tell to be openly gay, you couldn’t talk about “who you love, who you broke up with, who was sending you care packages, and who should be called if, God forbid, something awful happens to you,” she said.
“I could listen to others talk about their spouses, but I couldn’t. Or I could lie by changing the gender and name of my girlfriend,” she said.
Having joined the military after 9/11, by 2002 McLaughlin concluded that she wanted to make her career in the Armed Forces, but that she would be active in efforts to overturn Don’t Ask, Don’t Tell as well. She knew she would finish law school, become a Judge Advocate General, or JAG, and would be called upon to handle discharges resulting from DADT. “I knew that maybe I could help people targeted by DADT, or at least make it easier for them, help them retain some dignity in the process,” she told the audience.
She did that and more, joining the Servicemembers Legal Defense Network and traveling to Washington, DC – “not in uniform” – to appeal to lawmakers to repeal the law.
The jig was up
But then, in 2008, someone reported her as being a suspected lesbian.
“I figured the jig was up,” she said. She was devastated. When during the investigative process they asked her directly if she was a lesbian, she said “Yes I am” and then immediately asked for an attorney.
Ultimately she became one of only four people known to have survived DADT and not been discharged from the military despite being labeled gay or lesbian. She was investigated once under DADT and then a handful of additional investigations ensued. Yet she remained in the military.
Harm from DADT remains
“Officially there were 13,000 individuals discharged from the military under Don’t Ask, Don’t Tell, “ she said. Many more resigned or pled down to lesser forms of misconduct so the exact nature of their discharge would not appear on their record. Many others never joined the military because they are gay or lesbian. Still others just left rather than risk being found out, she observed.
Role of transgender individuals in the military
The repeal of DADT has not adequately addressed the issues faced by those who are transgender, she said, because those issues are covered under medical regulations. While she can’t express her direct opinion in public about how transgender service members and veterans should be addressed, she did note that she has been active in examining the issue and advising the military, including its senior-most leaders, about what should be done.
“We need to determine how best to support our transgender service people,” she said. They want the choice to serve just like she did, she said. The goal: to ensure that all qualified individuals who want to serve, can serve.
The DAV Lecture is made possible by the generous support of the DAV Charitable Service Trust and is co-sponsored by the Veterans Legal Clinic at the WilmerHale Legal Services Center of Harvard Law School, the Law School’s Armed Forces Association, and HLS Lambda. Previous speakers in the DAV Lecture series have included Hon. Robert Davis, Chief Judge of the U.S. Court of Appeals for Veterans Claims; Dr. David Shulkin, Secretary of VA; Ray Mabus, Secretary of the Navy; Robert McDonald, Secretary of VA; and Hon. Robert Russell, founder of the nation’s first veterans treatment court.