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Court Rules Sexual Orientation Not a Bar to Military Service for Major Witt

TACOMA, WA. U.S. District Court Judge Ronald Leighton has ordered the Air Force to reinstate Major Margaret Witt, a decorated flight nurse who had been dismissed under the “Don’t Ask, Don’t Tell” policy. After six days of trial, the Court found that Major Witt’s sexual orientation does not negatively impact unit morale or cohesion.  ACLU of Washington attorneys have directly represented Major Witt since her case began in 2006.

Upon hearing the judge’s ruling, Major Witt  said, “I'm thrilled about the decision today. I appreciate the Court's belief in the professionalism of the military. Many people forget that the U.S. military is the most diverse workforce in the world--we are extremely versed in adaptation. Thousands of men and women who are gay and lesbian honorably serve this country in our military. Wounded personnel never asked me about my sexual orientation. They were just glad to see me. I can't wait to rejoin my unit.”

The first breakthrough in the case came in 2008 when the Ninth Circuit Court of Appeals ruled that the Air Force must prove that discharging Major Witt is necessary for purposes of military readiness.  Although the ruling left in place the military’s “Don’t Ask, Don’t Tell” policy, it sent the case back to the trial court saying that before discharging a soldier under the policy, the military must prove that the individual’s conduct actually hurts morale and unit cohesion.  This requirement is now known as the “Witt Standard.”  The lawsuit has drawn national attention. At her confirmation hearings, then-Supreme Court nominee Elena Kagan discussed the significance of the “Witt Standard” established by the case.

 “Today we heard the hammer of justice strike for Major Margaret Witt.  We look forward to the day when all members of our military can serve our country without invidious discrimination. To discharge her simply because of her sexual orientation was entirely unfair to her and unwise for the military, which needs her significant skills,” said ACLU of Washington Executive Director Kathleen Taylor.

ACLU-WA Legal Director Sarah Dunne said, “The U.S. military integrated different races and women over the last 50 years.  There is zero evidence to suggest that gay and lesbian soldiers can’t serve openly. The time for Don’t Ask Don’t Tell has ended.  America is in a different place and so is the U.S. military.”

A 1986 graduate of Pacific Lutheran University, Major Margaret Witt was a flight nurse assigned to McChord Air Force Base near Tacoma. During her 19-year career in the Air Force, Major Witt served in the Persian Gulf, received many medals and commendations, and always had superb evaluations from her superiors. In 1993, she was selected to be the “poster child” for the Air Force Nurse Corps recruitment flyer.

Major Witt served in Oman during Operation Enduring Freedom and received a medal from President Bush, who noted that she had delivered “outstanding medical care” to injured service members and that her “outstanding aerial accomplishments …  reflect great credit upon herself and the United States Air Force.”  In 2003, Major Witt received another medal for saving the life of a Defense Department employee who collapsed aboard a government chartered flight from Bahrain.   

“Major Witt’s case exemplifies the baseless nature of the military’s ‘Don’t Ask, Don’t Tell’ policy, which wrongly assumes that openly gay or lesbian soldiers detract from morale,” said Laura W. Murphy, Director of the ACLU Washington Legislative Office. “The court’s finding today that Major Witt’s sexual orientation did not negatively impact unit morale or cohesion underscores the urgent need for Congress to immediately repeal this law.”

From 1997 to 2003, Major Witt was in a committed relationship with another woman, a civilian.  In the summer of 2004, Major Witt was notified that the Air Force had begun an investigation into an allegation that she had engaged in homosexual conduct. In November 2004, Major Witt was placed on unpaid leave and told she could no longer participate in any military duties, pending formal separation proceedings.

In March 2006, the Air Force informed Major Witt that she was being administratively discharged on grounds of homosexual conduct.  The following month, the ACLU filed papers for Major Witt challenging the discharge and seeking her reinstatement. In its 2008 ruling, the Court of Appeals emphasized that generalized or hypothetical assertions about the impact of gay and lesbian service members would not be sufficient. 

The military provided no evidence that her sexual orientation or conduct has caused a problem in the performance of her military duties. To the contrary, the ACLU had several  of Major Witt’s military colleagues testify that her forced absence is harmful to her unit’s morale.

Representing Major Witt are ACLU-WA Legal Director Sarah Dunne and Sher Kung, a Perkins Coie Fellow, and ACLU-WA cooperating attorneys James Lobsenz of Carney Badley Spellman and Aaron Caplan of Loyola Law School.

In a previous military case, the ACLU-WA and Lobsenz represented Army Sgt. Perry Watkins, who was dismissed in 1981 when President Ronald Reagan decided no homosexuals could serve in the military.  In 1989, the U.S. Court of Appeals for the Ninth Circuit ruled that, as a matter of basic fairness, the Army could not discharge Watkins since the military had known he was gay when they drafted him in 1968.