Sherrill Farrell, et al  vs.  United States Department Of Defense, et al

Case Background

On August 8, 2023, Plaintiff  Sherrill Farrell and others filed a Class action lawsuit in the United States District Court, California Northern, San Francisco division(Case number: 3:23cv4013). Magistrate Judge Joseph C. Spero presided over this case.

Cause

The United States Armed Forces enforced discriminatory policies against LGBTQ+ service members for decades. These policies, including “Don’t Ask, Don’t Tell” (DADT) and earlier rules, explicitly barred individuals from serving openly based on their actual or perceived sexual orientation. Between 1980 and 2011, the military discharged over 35,800 service members under labels such as “homosexuality” or “homosexual conduct.” Upon discharge, these veterans received Form DD-214s that included stigmatizing codes and narrative reasons referencing their sexual orientation. Many of these military discharges were classified as less than Honorable, preventing veterans from accessing crucial benefits like healthcare, education assistance, and housing support. Although the repeal of DADT in 2011 ended the discriminatory policy, the government failed to correct the affected records systematically. LGBTQ+ veterans faced the burden of individually applying for discharge upgrades, a process described as lengthy, complex, and inaccessible.

Injuries

The discriminatory military discharges caused significant and enduring harm to LGBTQ+ veterans. The government issued DD-214 forms that publicly disclosed their sexual orientation, violating their privacy and exposing them to discrimination in civilian life. Employers, educational institutions, and other entities often required veterans to present their DD-214 forms, forcing them to reveal deeply personal information. This led to stigma, exclusion, and challenges in finding employment. Veterans with less than Honorable discharges were denied access to vital VA healthcare services, leaving many without consistent medical care. For example, one veteran went decades without treatment for a chronic condition due to ineligibility for benefits. Others faced financial and educational obstacles, as they could not use GI Bill benefits to pursue higher education. The discriminatory military discharges also caused emotional harm by stripping veterans of their sense of belonging in the military community and society at large.

Damages

The damages resulting from LGBTQ+ veterans discrimination extended far beyond the loss of benefits. Veterans endured financial hardship, emotional distress, and social isolation due to their military discharges. Many could not access education benefits under the GI Bill, forcing them into debt or preventing them from achieving their academic goals. For instance, one veteran abandoned her plans for college because her discharge status disqualified her from assistance. Another veteran struggled with chronic health issues after being denied access to VA healthcare, leading to years of declining health. Some veterans, denied housing benefits, experienced long-term homelessness. One individual lived on the streets for over 20 years as a result. Beyond these tangible harms, LGBTQ+ veterans faced the loss of dignity and pride in their service. Many avoided veteran-focused communities to conceal the circumstances of their military discharges, deepening their isolation and psychological suffering.

Key Arguments and Proceedings

Legal representation

  • Plaintiff(s): Sherrill Farrell | James Gonzales | Julianne Sohn | Stephan Steffanides, individually and on behalf of all others similarly situated | Hayden Powell
    • Counsel for Plaintiff: Chelsea Corey | David Karl Willingham | Elizabeth Kristen | Fawn Jade Korr | Lindsay Polastri Nako | Lori Rifkin | Lynnette Miner | Meredith Dixon | Rachel T Yeung | Radha Sathe Manthe | Jocelyn Dion Larkin
  • Defendant(s):United States Department of Defense | Lloyd J Austin III (Secretary, United States Department of Defense) | Christine Wormuth (Secretary, United States Army) | Carlos Del Toro (Secretary, United States Navy) | Frank Kendall (Secretary, United States Air Force)
    • Counsel for Defendants: Andrew Evan Carmichael | Liam Christopher Holland 

Key Arguments or Remarks by Counsel

“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 due to discriminatory discharge policies,” said Elizabeth Kristen, a senior staff attorney with Legal Aid at Work, a group that helped file the suit. “It marks a crucial step in addressing this deep-seated injustice and ensuring these veterans receive the acknowledgment and respect they have long been denied.

“This case is not about damages,” Jocelyn Larkin, one of the lawyers representing the plaintiffs, said at the time it was filed. “This case is about simply changing that piece of paper because the effect of changing that piece of paper is so incredibly consequential for our clients.”

Claims

The plaintiffs alleged that the United States Department of Defense violated their constitutional rights under the Fifth and Fourteenth Amendments. By marking DD-214 forms with discriminatory codes and narratives referencing sexual orientation, the government treated LGBTQ+ veterans unequally compared to their heterosexual counterparts. The plaintiffs argued that the failure to correct these military discharge records systematically perpetuated LGBTQ+ veterans discrimination and violated their right to equal protection under the law.

They also contended that the existing discharge upgrade process placed an unfair burden on LGBTQ+ veterans, requiring them to navigate an arduous system to address the effects of acknowledged discrimination. The plaintiffs sought automatic corrections to all affected DD-214 records, discharge upgrades to Honorable where appropriate, and systemic reforms to remedy the long-standing harm caused by discriminatory military discharges.

Defense

The Department of Defense (DoD) argued that the plaintiffs’ claims lacked merit, asserting that the current discharge upgrade process was fair and accessible. While the DoD acknowledged the discriminatory nature of “Don’t Ask, Don’t Tell” and similar policies, they emphasized that these rules were repealed and were no longer in effect. The DoD maintained that existing review boards, such as the Boards for Correction of Military/Naval Records, provided veterans a way to address military discharge corrections.

They rejected the plaintiffs’ characterization of these processes as overly burdensome. The DoD claimed that applicants were not required to present exhaustive documentation. Additionally, the DoD argued that plaintiffs failed to demonstrate ongoing harm. They stated that no discriminatory policies or disclosures persisted after the repeal. The DoD further contended that legal doctrines, such as the statute of limitations and laches, barred the claims. While the DoD recognized the historical impact of LGBTQ+ veterans discrimination, they argued that they had no obligation to initiate a systematic review of military discharge records.

Jury Verdict

On January 5, 2024, the settlement between LGBTQ+ veterans and the Pentagon resolved decades of harm caused by discriminatory military discharges. The agreement simplified the process for veterans discharged under “Don’t Ask, Don’t Tell” and earlier policies. Veterans could now correct their military records without undergoing a burdensome legal process. If their discharge papers cited their sexual orientation as the reason for separation, they could request revised DD-214 forms that removed references to their sexuality. Additionally, veterans denied an honorable discharge due to LGBTQ+ veterans discrimination became eligible for an expedited upgrade review. This review restored their access to critical benefits such as healthcare, education, and housing.

While the settlement did not include monetary damages, it provided for a $350,000 payment by the Pentagon to cover the plaintiffs’ legal costs. By removing stigmatizing language from military discharge records, the agreement addressed the emotional, financial, and social harms of discriminatory practices. The resolution marked a significant step in repairing the damage caused by LGBTQ+ veterans discrimination and restoring dignity to those impacted.

Court Documents:

Documents are available for purchase upon request at jurimatic@exlitem.com

Press Release:

https://www.cbsnews.com/news/pentagon-legal-settlement-lgbtq-veterans/