Margaret Witt, center, stands with Air Force Lt. Col. Victor Fehrenbach, left, at the federal courthouse in Tacoma, Wash., Friday, Sept. 24, 2010. A federal judge ruled Friday that Witt, a flight nurse discharged from the Air Force for being gay, should be given her job back as soon as possible. Fehrenbach, who is gay, is currently fighting his own discharge from the Air Force. (Ted Warren / Associated Press)
TACOMA — Spokane resident Margaret Witt may be the best evidence that “Don’t Ask Don’t Tell” doesn’t work, a federal judge said today. U.S. District Judge Ronald Leighton, in a sometimes emotional ruling from the bench, said Witt can be reinstated in the Air Force Reserves despite the military’s ban on homosexuals serving openly in the military.
Leighton ruled that Witt’s rights were violated and that evidence presented during a six-day trial showed her unit, the 446th Air Evacuation Squadron located at nearby McChord Air Force Base, did not suffer any loss of cohesion or morale from her service or other known or suspected homosexuals among its ranks. On the contrary, morale dropped after she was suspended and later discharged for being a lesbian, he said.
That overrides the general reasons set down by Congress and adopted by the military to keep openly gay members from serving, he said.
“She should be reinstated at the earliest possible moment,” Leighton said, if that’s what she wants. After finishing his formal ruling, he looked at Witt and added “I hope you will request reinstatement with the Air Force Reserves and the 446th.
“You will provide the best evidence that open service of gays and lesbians will have no adverse effect on cohesion, morale or readiness on this or perhaps any Air Force or military unit.”
The packed courtroom broke into applause after Leighton left the bench, and Witt said later she would “absolutely” request reinstatement as soon as she completes the necessary hours of work as a nurse to meet standards for being a military flight nurse.
Witt would become the first military person discharged under the 1993 policy to be ordered returned to service by a federal judge, her attorney Sarah Dunne said. Another openly gay service member was reinstated before the policy was instituted and some openly gay soldiers have been allowed to remain with their Army units that are being called up to combat duty. But applying Don’t Ask, Don’t Tell to an individual and his or her unit, rather than the Armed Forces as a whole, is already being described as the “Witt standard.”
A decorated flight nurse, Witt was suspended in 2004 after being “outed” by her former partner and the husband of a co-worker with whom she was having an affair. The woman eventually left her husband and now lives with Witt.
She said she didn’t consider herself a lesbian when she joined the Air Force in 1987 after graduating from college with a nurse’s degree, and dated both men and women at that time. She did consider herself a lesbian in 1993, when Congress passed and the military enacted the “Don’t Ask, Don’t Tell” policy. But she understood the policy to mean that she couldn’t tell anyone about her sexual orientation, and the military couldn’t ask.
When she was interviewed by a military attorney in 2003, she said she was asked, but didn’t answer. After her suspension, she filed suit to keep her job in the Air Force Reserves 446th Air Evacuation Squadron, and made public statements that she was a homosexual. A military panel turned down her appeal to return to service and gave her an honorable discharge.
Leighton originally dismissed the suit, saying that Congress has a “rational basis” to enact the policy after holding hearings and concluding it was in the best interest of military order, discipline and morale. But the 9th U.S. Circuit Court of Appeals sent the case back, saying that whatever Congress may have decided for the military as a whole, Witt had a right to a trial on whether the policy, as applied to her contributes to that order, discipline and morale, or whether something other than discharge would achieve those goals.
Members of her unit testified at the trial that they knew or suspected Witt was a lesbian, but that didn’t matter to them. What mattered was that she was good at her job, so good that at one point she was in charge of making sure other members of the unit were up to the military’s exacting standards.
“It was Major Witt’s suspension and ultimate discharge that caused a loss of morale in the unit,” Leighton said. The 446th is a highly professional, well-trained unit that provides a vital service to troops around the world, he added.
“There is nothing in the record before this court suggesting that the sexual orientation (acknowledged or suspected) has negatively impacted the performance, dedication or enthusiasm of the 446th. There is no evidence that wounded troops care about the sexual orientation of the flight nurse or medical technician tending to their wounds…Her loss within the squadron resulted in a diminution of the unit’s ability to carry out its mission. Good flight nurses are hard to find.”
Federal attorneys had urged Leighton to look beyond the impact on the squadron and consider polls that show some military members feel that openly gay members will hurt military readiness and erode morale. That’s a possibility, he acknowledged, “just as it was a possibility during the integration of blacks, other minorities and women into the armed forces.”
But the fact that the Army allows openly gay members to go to war if their discharge process has not yet begun demonstrates that the Army has decided that “openly gay service is preferable to going to war without a member of a particular unit.”
The federal government noted during the trial that by having an affair with a married woman, Witt violated military rules against committing adultery. But Witt was discharged for violating Don’t Ask, Don’t Tell, not for adultery, and was given an honorable discharge without any mention of that violation, Leighton said. He said he wouldn’t use an uncharged offense to uphold an otherwise unconstitutional discharge.
After delivering his ruling, Leighton told Witt she’s become a central figure in a “long-term and highly charged civil rights movement” and that would be stressful. But she said something during the trial that resonated with him, and he hoped she would remember. She testified that when she was forced to tell her parents she was a homosexual because she was filing the lawsuit that they provided “unfailing love and support” for her.
“Notwithstanding the victory you have attained here today, for yourself and for others, I would submit to you that the best thing to come out of all this tumult is still that love and support you receive from your family,” he said. “You are truly blessed.”
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