Security Clearances for Gay Men and Women

National Gay Rights Advocates
540 Castro Street, San Francisco, California 94114 (415) 864-3624
830 Santa Monica, Suite 202, West Hollywood, California 90069 (213) 650-6200

INTRODUCTION

1. WHAT IS A SECURITY CLEARANCE?

A security clearance is a license from an agency of the federal government, giving its holder access to classified information of which he or she has a "need to know."

2. WHAT KIND OF SECURITY CLEARANCES ARE THERE?

The type of security clearance depends on the government agency involved. Traditionally, Confidential, Secret, and Top Secret were the three levels of classification. Recently a new category, Sensitive Compartmentalized Information or SCI has been added.

3. WHO MUST OBTAIN A SECURITY CLEARANCE?

If their work is believed to affect national security, then federal employees and employees of private companies under government contract must hold security clearances.

4. I WORK FOR A GOVERNMENT AGENCY. WHAT IS THE PROCEDURE I MUST FOLLOW TO OBTAIN A SECURITY CLEARANCE?

If you work for the Federal Government, your particular agency has its own policies and procedures for issuing clearances. Generally, you must fill out a standard form which receives an initial screening. There is a trend, at the administrative level, such that if you meet the general criteria of trustworthiness, reliability, etc., you will probably get a security clearance even if it is discovered that you are gay. (This is not true at the police agencies, such as the FBI and CIA.)

5. WHAT PROCEDURE MUST I FOLLOW TO GET A SECURITY CLEARANCE IF I WORK FOR A PRIVATE COMPANY?

If you work for a private company the application procedure is more standardized. You must first fill out a standard Department of Defense form. This form is first processed by the Defense Industrial Security Clearance Office (DISCO) located in Columbus, Ohio. If the clearance is not granted, it is forwarded to the Directorate for Industrial Security Clrearance Review (DISCR) in Arlington, VIrginia. DISCR either orders DISCO to grant the clearance or issues a "Statement of Reasons" for denial. All gay persons are thoroughly investigated, and coworkers, family and neighbors are often questioned. It is best if such persons are advised to tell government investigators that they know you are gay, since that strongly negates governmental conclusion of susceptibility to blackmail, however false such conclusions may be.

6. IF MY APPLICATION FOR A DISCO SECURITY CLEARANCE IS DENIED, IS THIS DECISION FINAL?

No. You may appeal the decision by responding, in writing, to each of the charges delineated in the "Statement of Reasons." The denial will be reviewed, either with or without a hearing, depending upon your request. If you request a hearing, it will be conducted before the regional examinaer. At the hearing, you may be represented by counsel, examine witnesses and introduce evidence in your favor.

7. WHAT IF MY APPLICATION IS REJECTED AGAIN?

If the examiner upholds the denial of your clearance, you may take your case to the Appeal Board in Washington, D.C. The Board will examine the record of your hearing and make a decision. If, however, the Board feels that it does not have enough information, it may send the case back to the examiner for further testimony or even back to DISCR for further investigation.

8. WHAT IF THE DECISION IS UNFAVORABLE?

The appellate procedure of the government has been exhaused. Your only recourse at this point is to bring a lawsuit against the government.

9. HOW LONG DOES A CLEARANCE LAST?

A clearance is good as long as you need access to classified information, but is subject ot review from time to time regarding your continuing eligibility to hold it. From a practical standpoint, your clearance may actually last indefinitely.

10. WHAT KIND OF CIRCUMSTANCE WOULD PROMPT A REVIEW OF MY CLEARANCE?

A passage of over five years, new criminal convictions, or application for a different clearance are examples of circumstances that could cause a review to occur. In addition, a change of jobs may cause a review if more than 12 months elapse before an application is made by your new employer. Lateral changes within the same agency or company will probably not affect your clearance. But a change from one agency to another, or from the private sector to the government, or vice versa, might prompt a review of your file. Unfortunately, there is no hard and fast rule as to when a review may take place and it is impossible to predict what events will instigate a review.

11. I ALREADY HOLD A LOWER LEVEL SECURITY CLEARANCE. I HAVE JUST BEEN ASSIGNED TO WORK ON A PROJECT THAT REQUIRES A HIGHER CLEARANCE. WHAT HAPPENS NOW?

You will be required to have your present clearance upgraded to meet the requirements of your new job.

12. WHAT IS THE PROCEDURE FOR UPGRADING MY CLEARANCE?

In both the private companies and government agencies, you start by going through the same process to upgrade your clearance as when you first applied for it. However, it is likely that a more thorough investigation will be made of your background.

13. WHAT WOULD LEAD TO DISCOVERY THAT I AM GAY?

Arrests for sexual misconduct, criminal convictions, ANY military service (especially if your discharge papers, however honorable, indicate that you are "homosexual"), or association with any gay organization are just a few factors that would reveal your sexuality directly or as the result of an investigation. Failure to list membership in any organization, gay or non-gay, is one ground for denial of clearance that is likely to be upheld by a court, since it is a falsification that indicates a desire to conceal ones's homosexuality.

14. WILL I LOSE MY JOB IF I AM DENIED A SECURITY CLEARANCE?

If your application is turned down, the reason for denial will not be given to your employer. If you are working for a private company, your employer will not be informed that you are gay. There are, however, other possible ramifications of a denial of your application. You will not be able to work on certain projects, thus limiting your usefulness at your job. In addition, opportunities for promotion may be restricted. Also, because your employer does not really know exactly why your application was rejected, the denial of a security clearance could cast a shadow on your moral character and background in the eyes of your colleagues.

If you are employed by a government agency there is no general rule as to whether your supervisor will be informed of your homosexuality. Each agency has a different policy. But whether or not your employer is advised as to the reason for the denial of your application, it is possible that your job will be affected. If you lose private employment for lack of security clearance and are later found eligible for the clarance by a federal agency, you may be able to obtain some of your lost wages from DISCO. If you lose government (civil service) employment for lack of clearance, you may be able to recover lost wages if you appeal to the Merit Systems Protection Board and prevail there.

15. WHAT REASONS DOES THE GOVERNMENT GIVE FOR DENYING GAYS AND LESBIANS SECURITY CLEARANCES?

The government continues to argue that a lesbian or gay man may be subject to blackmail or coercion because of a desire to remain secretive about his or her sexuality. (The DOD has admitted that it knows of no case where this has actually happened, and we don't either.) Because homosexual acts are illegal in many states, it has also been argued that a person who regularly commits such acts should not be granted a clearance. Gay people have also been accused of being unreliable because of character traits associated with the stereotypical gay lifestyle (e.g.: promiscuity lack of stable relationships, emotional immaturity, etc.). However, most denials of clearances to gays today are based on lack of convincing evidence (from the government's point of view) that their parents, coworkers, and supervisors are aware of their homosexuality, or on non-sexual behavior such as any use of marijuana, cocaine, or other such substances.

16. WHAT IS THE ATTITUDE OF THE COURTS IN GRANTING/DENYING OF CLEARANCES TO GAY MEN AND LESBIANS?

The courts have generally ruled in favor of gay people, and have required the government to show a rational connection or "nexus" between gay sexual conduct and the ability to safeguard classified information. However, denials of security clearances were upheld where the gay person either denied his [no lesbian cases known] homosexuality or refused to answer sex-related questions.

17. DOES THIS MEAN THAT IF A FEDERAL AGENCY DISCOVERS THAT I AM GAY, I WILL BE DENIED A CLEARANCE?

Not necessarily. In apparent response to court decisions favoring gays, several agencies, including the DOD and Department of Energy, have announced policies which no longer automatically exclude gays because of their sexuality. But, the CIA and NSA continue to apply per se anti-gay rules. All agencies deny special access clearances to gay persons, and there is no written notice of denial or statements of reasons in such cases. However, the Army and the NSA have granted a few Sensitive Compartment Information (SCI) clearances to gays, although with reluctance. Even for ordinary Secret and Top Secret clearances, gays may be viewed as undesirables, and persistence is required to obtain even the lowest level of clearance.

18. WILL I BE ASKED ABOUT MY HOMOSEXUALITY IN MY PERSONAL INTERVIEW?

If you are interviewed at all, you will probably be asked if you are gay. However, applicants for ordinary Secret clearances are not usually interviewed unless the government already suspects that they are gay, use marijuana, or do something else that offends the government. You will not be asked if you are gay on the application. Depending upon the agency, more personal questions may be asked (number of sexual contacts, location of contacts, etc.). The best action to take at this point is to refuse to answer any questions until you have consulted a knowledgable lawyer or someone who can advise you as to the proper way to handle the proceedings. Note carefully however, that courts have ruled that gay persons must answer ALL sex-related questions, except that the government may not demand that you name your sexual partners unless you are presently living with such a person. Don't volunteer any information; it may be used against you, even if it seems to be insignificant. It may be a hassle, but properly handled, you have a good chance of getting a security clearance even if your homosexuality is an issue.

19. COULDN'T I JUST AVOID ALL THE HASSLES BY DENYING THAT I AM GAY?

That would be the WORST thing you could do. If you are caught lying, you will probably be denied a security clearance because this misrepresentation will be seen as evidence of lack of trustworthiness. Also, the new agency policies seem to encourage openness. Lying about your homosexuality may indicate to the agency that you are closeted about your sexual orientation and therefore are a target for blackmail or coercion. Don't lie about being gay. If you are caught lying at any stage of the proceedings, you have little chance of getting a clearance.

20. MUST I HAVE A LAWYER?

Do not answer questions or try to handle the administrative proceedings without getting some kind of guidance by a person who is familiar with the problems encountered by lesbians and gay men in obtaining security clearances. There are many people and agencies who are trained to help those in your situation. Don't jeopardize your application and your job by acting without some form of counsel.

In sum, the moment the issue of homosexuality arises in the evaluation of your application, contact a lawyer or someone else who is familiar with the administrative proceedings. Other than to declare you are gay, don't answer any questions concerning your sexuality or anything else without getting proper advice and counsel. Never lie to the interviewer or on your application. Properly handled, your application for a security clearance has a good chance of being approved at the administrative level because of new screening policies and criteria. Improperly handled, administrative appeals might be unsuccessful and recourse through the courts may be just as unfavorable.

WHERE CAN I GO FOR ADVICE AND/OR LEGAL COUNSEL?

Contact National Gay Rights Advocates, 540 Castro Street, San Francisco, California 94114 (415) 863-3624. If NGRA is able to accept your case, there is no charge for attorney's fees. NGRA can also make referrals to lawyers in your local community.

NATIONAL GAY RIGHTS ADVOCATES DEFENDING OUR RIGHTS ... CREATING NEW LAW

National Gay Rights Advocates is the nation's leading law firm promoting equality for gay men and women. Founded in 1978 as a non-profit, membership supported organization, NGRA focuses on impact litigation coordinated by a professional staff and supported by pro bono assistance from the country's most prestigious law firms and attorneys.

From offices in Los Angeles and San Francisco, NGRA's legal activities have extended to all 50 states, 7 of the 12 U.S. Courts of Appeal and the U.S. Supreme Court. Our historic victories in the areas of AIDS, employment discrimination, freedom of speech and family partnerships have substantially bettered the quality of life for millions of Americans.

Established in 1985 as a special division of National Gay Rights Advocates, the AIDS Civil Rights Project has initiated precedent-setting litigation in such areas a employment discrimination, family law, insurance services, and forced HIV antibody testing. In conjunction with litigation, the Project provides a full spectrum of educational materials including consumer education and information, litigation manuals and survey research.

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