2965 ), modified, and after congressional passage, signed into law by President Obama as P.L. 111-321 on December 20, 2010, setting in motion the process for repealing Section 654, Title 10 United States Code and the "Don't Ask, Don't Tell" policy that was promulgated as a result of this law. According to P.L. The certification occurred on July 22, 2011. How will language in the Uniform Code of Military Justice, particularly the article prohibiting sodomy, be affected? This report will examine these issues. The Role of Congress

Under the Constitution, Congress has the authority "To make Rules for the Government and Regulation of the land and naval Forces." Congressional Oversight

Congress may also respond to the repeal by exercising its oversight duties. For example, it could hold hearings, as well as propose legislative changes to laws/policies affected by the repeal of Section 654. 111-321 ) to require the Chief of Staff of the Army, the Chief Naval Operations, the Commandant of the Marine Corps, and the Chief of Staff of the Air Force to submit to the congressional defense committees their written certification that repeal of the Don't Ask, Don't Tell law specified in section 654 of title 10, United States Code, will not degrade the readiness, effectiveness, cohesion, and morale of combat arms units and personnel of their respective armed force that are engaged in combat, deployed to a combat theater, or preparing for deployment to a combat theater. Benefits and Privileges

A panoply of pay, benefits, and privileges are available to military personnel. On September 21, 1996, the Defense of Marriage Act (DOMA) became law. Under this law, marriage is defined as the union between one man and one woman. The federal government, therefore, does not recognize same-sex marriages for the purpose of extending benefits and privileges, although several states do. Other questions arise. Defense of Marriage Act

In an effort to contend with the issue of variations in military benefits that may occur as the result of certain states recognizing same-sex marriages, it has been suggested that the most direct way to address the issue is to repeal DOMA. Senate versions of these bills did not contain similar language. Sodomy

Congressional treatment of sodomy in the military context has varied over time. Legislative provisions have been included in the Senate version of the FY2012 National Defense Authorization Act that would repeal the crime of sodomy under the UCMJ (Article 125) and expand Article 120 ("Rape and Carnal Knowledge") to include three sections applying to (1) rape and assault against any person, (2) sexual offenses against children, and (3) other non-consensual sexual misconduct. This language was not included in the final version of the law. 125 been repealed, consensual sodomy could not be prosecuted. Application to Transgender Individuals

The repeal of Section 654 has encouraged some to advocate for other changes to the law and/or military policy. Activists have complained that despite the repeal, the military discriminates against transgender individuals. Based on military fitness policies, individuals who have a history of mental disorders that, in the opinion of the medical examiner, would interfere with or prevent satisfactory performance of military duties are not allowed to serve. Among the disorders cited are "sexual and gender identity disorders." (These disorders are listed in the International Classification of Diseases, 9 th Revision, Clinical Modification or ICD-9-CM, 302.) At one time, homosexuality was listed as a psychiatric disorder, but this was removed from the Diagnostic and Statistical Manual (DSM) in 1973. (DSM and ICD have merged their codes.)
On December 22, 2010, President Obama signed P.L. 111-321 into law. It called for the repeal of the existing law (Title 10, United States Code, §654) barring open homosexuality in the military by prescribing a series of steps that must take place before repeal occurs. One step was fulfilled on July 22, 2011, when the President signed the certification of the process ending the Don't Ask, Don't Tell policy, which was repealed on September 20, 2011. However, in repealing the law and the so-called "Don't Ask, Don't Tell" policy, a number of issues have been raised, but were not addressed by P.L. 111-321. This report considers issues that Congress may wish to consider regarding matters arising as a result of the repeal of §654.
Under the Constitution, Congress has the authority for making "rules for the government and regulation" of the military services. It has been suggested that Congress could hold hearings concerning such matters as the anticipated changes in other laws regarding military benefits, for example.
Issues for consideration include, but are not limited to, congressional oversight of the repeal process, differences in benefits and privileges some individuals may experience (especially differences created under the Defense of Marriage Act), changes involving sodomy prohibitions, and efforts by some to expand the repeal to include transgender individuals.
Certain military benefits and privileges are extended to spouses as defined by law. Under the Defense of Marriage Act, the federal government recognizes marriage as the union of one man and one woman. However, certain states recognize same-sex marriages. Thus, it is possible for a same-sex couple to be legally married but not eligible for certain military benefits and privileges.
Laws prohibiting sodomy (defined as "unnatural carnal copulation") in the military context have varied over time. There existed proposed language in the Senate version of the National Defense Authorization Act in the 112th Congress that would remove sodomy from the Uniformed Code of Military Justice, effectively decriminalizing sodomy. Similar language did not exist in the House version. This language was not included in the final law. Instead, use of the term "forced" sodomy has been cited suggesting violations involving "consensual" sodomy will not be enforced.
The repeal of the ban on homosexual behavior has encouraged some to expand efforts to end discrimination against transgender individuals. Based on military fitness policies, individuals who have a history of mental disorders that, in the opinion of the medical examiner, would interfere with or prevent satisfactory performance of military duties are not allowed to serve. Among the disorders cited are "sexual and gender identity disorders." (These disorders are listed in the International Classification of Diseases, 9th Revision, Clinical Modification or ICD-9-CM, 302.) At one time, homosexuality was listed as a psychiatric disorder, but this was removed from the Diagnostic and Statistical Manual (DSM) in 1973. Some have argued that other "gender disorders" should also be removed. Along these lines, advocates believe it is unfair for the military to continue to discriminate against these individuals. Others, however, believe that until the DSM and ICD-9-CM are changed, such individuals should continue to be barred from serving.