Biden to pardon veterans found guilty under US military’s gay sex ban

President Joe Biden announced Wednesday that he will pardon LGBTQ+ veterans who were charged under a former military law used to ban same-sex relations in the armed forces.

The pardon impacts veterans who were charged under a previous version of a law in the military’s Uniformed Code of Military Justice that criminalized sodomy, including between two consenting individuals.

Although the U.S. Supreme Court struck down anti-sodomy laws nationwide in a 2003 ruling, the 63-year-old regulation stayed on the books in the UCMJ until Congress amended the law in 2013 to remove consensual sexual acts.

“Some of these patriotic Americans were subject to court-martial, and have carried the burden of this great injustice for decades,” Biden said in a statement. “I am committed to maintaining the finest fighting force in the world. That means making sure that every member of our military is safe and respected — so they can focus on their mission.

“This is about dignity, decency, and ensuring the culture of our Armed Forces reflect the values that make us an exceptional nation.”

Veterans will be able to apply for the pardon if they fall under the eligibility criteria, a senior administration official said. If they are approved for the pardon, they can use the certificate of pardon provided to begin the process of fixing their discharge papers.

Another senior administration official said the Biden administration estimates that thousands of veterans were convicted of consensual conduct under military law, making them eligible for the pardon.

“We are going to take steps to try to make it as easy as possible for individuals to apply for [their paperwork to be correct],” the first senior administration official said. “When the Department of Justice sends the certificate of pardon to those who are eligible, they’ll be including material identifying specifically how they can apply for the change in their character discharge, along with the form for them to do so.”

Some veterans, however, have additional charges on their military record related to sexual identity — conduct unbecoming, for example — that fall outside the scope of the now-defunct portion of the anti-sodomy law. The second senior administration official said the proclamation from Biden does acknowledge that fact, but the pardon does not cover those with other charges tacked on due to their sexual orientation.

Those veterans with additional charges on their record would need to go through a separate process through the Justice Department, they added.

Biden’s pardon for LGBTQ+ veterans comes after the Pentagon in September 2023 announced a “proactive review” of LGBTQ+ veterans who received less-than-honorable discharges based on sexual orientation through the military’s “Don’t Ask, Don’t Tell” policy.

According to the Defense Department, more than 32,000 troops were separated from the military under its “homosexual conduct” policy between 1980 and 2011. Of those, roughly 14,000 LGBTQ+ troops were issued less-than-honorable discharges from the armed forces.

Despite the review, the Pentagon has faced its share of legal challenges from LGBTQ+ veterans.

Last Thursday, a district judge denied a motion by the Pentagon to dismiss a class action lawsuit from LGBTQ+ veterans over discharge papers unnecessarily identifying their sexual orientation as grounds for separation — and the responsibility for records’ correction being put on the veterans.

The judge in their decision noted LGBTQ+ veterans are “forced to bear the burden” to alter their discharge papers to protect their privacy and not immediately out their sexual orientation. The judge did not agree with the Pentagon’s argument that the review currently taking place within the Defense Department should be grounds to dismiss the case.