By Emily Starbuck Gerson, Modern Military Magazine editor
LGBTQ+ people are often the target of harmful legislation and policies rooted in ignorance and misinformation. Many LGBTQ+ individuals also encounter discrimination due to religious beliefs or lack thereof, both in civilian and military spaces.
For example, an LGBTQ+ person might experience discrimination if a chaplain’s or commander’s religious beliefs don’t support LGBTQ+ identities. Beyond the LGBTQ+ identity, those who are non-religious or members of minority faith groups may also experience religious discrimination in predominantly Christian spaces, which adds another layer of potential bias or discrimination. As a queer Jewish military spouse, I know all too well how it feels when “religious freedom” doesn’t cut both ways.
These experiences are difficult for all involved, especially for those living at the intersection of multiple marginalized identities. Compared to civilians, these situations are often murkier for service members and their families. According to the 2019 report Strengthening the Military Family Readiness System for a Changing American Society, “Military life can interfere with service members' access to their religious leaders, communities, places of worship, and rituals (a good example being the last rites in Catholicism in preparation for death).”
It goes on to say that “Military commanders are responsible for protecting their personnel's free exercise of religion and for preventing religious discrimination,” but as the other stories in this issue reveal, that doesn’t always happen.
To shed light on our rights and recourse in the face of discrimination in the military, Modern Military turned to an expert: Shane McCammon, former member of the Air Force Judge Advocate General (JAG) Corps, proud transgender woman, and now a civilian complex litigation attorney in Washington, D.C.
In the interview below, McCammon breaks down what rights LGBTQ+ people and/or religious minorities have in the military, along with how to best handle discrimination. The comments and opinions are her own. If you are a victim of LGBTQ+ or HIV discrimination, please report it to Modern Military. The discrimination reporting form collects this important data to advise, refer, or assist you in dealing with the situation. We also use this data when we advocate to the DoD, VA, and Congress for policy and legislative change.
Modern Military: Thank you for speaking with us, Shane! Could you start by telling us about your military background, time in JAG, and what you are doing now?
Shane McCammon: I’m actually a former journalist. I never thought in a million years I'd join the military, but once I started law school, I really wanted to get into court early on in my career. I’d lived overseas before and really liked it, so I wanted to do that again. In 2006, I got into the Air Force JAG Corps just before my third and final year of law school. I graduated, passed the bar, then spent 12.5 years in active duty.
I was stationed in Turkey, D.C., England, then D.C. again. I spent most of my career as a criminal defense attorney, starting at the base level. It was really difficult and could get draining because you're constantly having to fight against the command and the military as a whole, but I really loved that job. I grew up always rooting for the underdog; the job just spoke to me in terms of being able to help people. I was later an appellate defense counsel, meaning handling cases on appeal, then a senior defense counsel in England — one of two based in Europe for the Air Force. I traveled all over Europe litigating high profile cases. Then I went back and did appellate defense again.
The Air Force sent me to get my L.L.M., a master’s level law degree from George Washington University’s School of Law in 2015. I ended up writing my thesis on the transgender service ban that was still in place and advocated for its repeal. I struggled with gender dysphoria throughout my life, but I didn't really have the vocabulary for it. The process of writing that thesis and talking with a lot of trans service members really opened things up for me. In 2019, I got out of JAG Corps and Air Force in part because of the ban, and I’d also had my fill of serving under Trump. I came out as transgender in 2020.
After separating from the military, I immediately went into private practice with one of the largest law firms in the country; Orrick, Herrington & Sutcliffe LLP in Washington, D.C. I have been there for around five-and-a-half years, and I’m still doing trial work, but in complex litigation in civil law rather than criminal law.
Shane McCammon
MM: While serving as a JAG, what were some issues you saw regarding religious discrimination, especially LGBTQ-connected? And have things gotten better?
SM: I joined the Air Force when Don’t Ask, Don’t Tell (DADT) was still in effect. That was a very different time. Shortly after the repeal of DADT, there was a lot of discussion about what chaplains could and couldn’t do — a conversation that is still ongoing.
The Chaplain Corps is set up to get endorsements from religious institutions. So if you’re a Baptist chaplain, you’re endorsed by a Baptist organization. There’s always this push and pull between chaplains following the strictures of their religion, their endorsing organization, and complying with military equal opportunity (MEO) and First Amendment issues.
I think it’s gotten better over the past 10 years or so, simply because there's been more guidance from the military and even from the Supreme Court over what’s constitutionally protected and what’s not.
What I don't think has gotten any better is this conflict between religious endorsing agencies and the needs of a wide range of beliefs, nonbeliefs, and individualized needs. I think that will always be an issue.
MM: As a new military spouse, I remember being puzzled as to why chaplains are often recommended — especially for dependents — as mental health resources, particularly when traditional providers aren’t available. Do you know the reasoning?
SM: The cynical part of me thinks it’s a resource issue, meaning the military just doesn’t want to put the necessary resources into providing mental health services. I think mental health care is severely lacking, even for active duty folks.
For family members, I think the common thought is, if you really have an issue or need mental health treatment, you can go through TRICARE and get it off-base. But it’s just not that easy. Now that I’m out of the military, I’m experiencing how hard mental health treatment is to come by in this country.
I believe a lot of it is the military thinking, “We don’t have the resources to offer it to everyone, so we’ll just send them to the chaplains.” One of the problems with relying on chaplains to provide mental health treatment, however, is they are not mental health professionals. This is not to disparage chaplains, but at the end of the day, there’s a big difference between somebody who is a trained, experienced mental health provider and someone who is a chaplain.
Another problem, especially for LGBTQ+ people, is the discomfort of going into churches or places of worship. I grew up in a very conservative religion. When I joined the military, I was still a practicing Mormon. I left the church 10 years ago, and I have some very strong feelings about organized religion in general. I do not feel comfortable going into churches or places of worship.
When I first sought mental health treatment, it was partly because I had religious-based trauma. The last place I’d want to go talk about it is with a chaplain.
MM: I know most chaplains are from Christian denominations. Do service members or their families have any legal right to access a chaplain of their faith if one isn’t available at their duty station?
SM: Based on my understanding, that right is not currently afforded. If there’s not a chaplain on the base who’s a member of your faith, then the rule is that the chaplain is supposed to do their best to refer you to somebody else.
We definitely had this issue in Turkey; I had a client who was Jewish and there was no Jewish chaplain on base. Turkey is a majority Muslim country, so it’s not like there are a lot of rabbis around. It was a challenge. If I remember correctly, the service member would connect with a Jewish chaplain who was based in Ramstein, Germany. They had calls, and the chaplain occasionally visited Turkey. But no, you don’t have a right to a chaplain of a particular faith.
Photo by Dziana Hasanbekava
MM: What is the best course of action if a service member experiences discrimination by a military chaplain, either due to being LGBTQ+ or of a different faith?
SM: If you’re facing discrimination, the preferred, by-the-book method for seeking relief is to first ask the chaplain for an accommodation.
There was a well-known case at Fort Bragg in 2018. An Army chaplain at the base was a very conservative Baptist. He was organizing a marriage retreat, something chaplains in all the branches do. A lesbian service member wanted to participate in the retreat with her wife. The chaplain refused her because he said it would violate the tenets of his religion. He was worried about losing his ecclesiastical endorsement, so he canceled the entire retreat.
This service member complained, there was an investigation, and the Army brought charges against him for dereliction of duty for discrimination. They ended up dropping the charges, so it didn’t go to trial, but it was a big deal. The reason they dropped the charges is because he ultimately rescheduled the retreat and referred this lesbian troop to a different chaplain who did not have the same religious qualms about including her and her spouse. They offered an alternative retreat she could attend.
MM: That sounds like ‘separate but equal.’
SM: Yes, 100%. But that’s what the chaplain is supposed to do. If you go to a chaplain as a queer airman, soldier, sailor, or Marine and they can’t help you because of their religious beliefs, they’re supposed to refer you to another chaplain who can. But what if there’s not another chaplain? Or what if you really need to talk to somebody right then and there?
Military leadership typically says to start with the chaplain to get a referral. Then if that’s still not working out, go to your Equal Opportunity (EO) office or the Inspector General’s (IG) office and file a report.
You can go to either the EO or IG office on your own without notifying or getting permission from your chain of command.
I think the problem with both options is that it’s very hard to make a complaint anonymously. I know a lot of people, and have clients, who were negatively impacted by going to the IG. Your command is not supposed to retaliate against you as a result of your report, but it happens all the time.
MM: What should someone do if they experience retaliation after making a report?
SM: If you’re retaliated against by your command or someone else, you’re supposed to go back to the IG about it. It can also be elevated to a higher level IG to look into if it’s not being handled, or if you’re facing discrimination or retaliation from the IG themselves.
MM: Is it common for service members to avoid reporting discrimination for fears of it impacting their careers?
SM: Yes, and I personally had this happen. When I wrote my thesis on the transgender ban, my three-star general was not happy and gave me an order that was totally unlawful. I thought, this is BS, should I go to IG about this? Ultimately I didn’t because I thought, “Well, this guy controls my life.” It’s really awful to have to go through that mental calculus of whether it’s worth making the complaint. But you always have the right to report, and doing so can have positive consequences.
Photo by Lance Reis
MM: What about the base legal offices; are they a potential resource?
SM: You can always go there and get legal advice. It does get a little complicated when the complaint is about another military person or unit.
However, the folks in the base legal office are JAGs, and they’re responsible for ensuring that the commanders and the leadership are following the law. I used to provide legal assistance at my first duty location. If someone comes in and says they are being discriminated against by a chaplain, that’s something that the legal office could look into.
Ultimately, the legal office may refer you to the IG or MEO, especially since JAGs advise those offices and review those reports. However, it doesn’t hurt to go in and talk to the legal office and notify them about what’s going on, because they could step in and remind the chaplain of the law and their need to abide by it.
MM: What is the proper channel if someone desires religious accommodation for something that would put them out of regulations, like wearing a head covering or having certain facial hair?
SM: It depends on the service. You typically have to get an exception to policy, and that comes through the command. If they say no or give you a hard time, you can go to IG and/or MEO.
MM: Let’s talk about prayers and invocations in military settings. That’s another thing that surprised me as a new spouse, and I know it makes many people uncomfortable. What are the laws around that?
SM: At least in the Air Force, with regard to prayer, a distinction is made between whether it’s a mandatory or voluntary function. A retirement ceremony is technically not mandatory, so there’s a lot more leeway with invocations and whether you can pray in a specific deity’s name.
The thornier issue is when it’s a mandatory function. The Air Force guidance, when I was active duty, is that you can’t start a mandatory staff meeting with a prayer, and you can’t invoke a specific deity. There’s more leeway with “voluntary” events, although that line between what is voluntary and what is mandatory gets very blurred in the military, making it a difficult issue.
If someone feels they have experienced discrimination or unlawful religious activities at a mandatory event, they can follow the same channels for reporting and recourse that we just spoke about for chaplain issues.
MM: Is anything different regarding religious rights for service members in a deployed environment?
SM: It’s the same as in a normal installation, although I will say, there tends to be more leeway given to things that happen in the deployed environment. For example, when I was deployed one of my bosses was deeply religious. He wanted to start every mission outside wire (the security perimeter) with a prayer, which isn’t uncommon.
I did not care for that, but technically, is that illegal? It’s definitely on the line, but is it mandatory? It’s a mandatory mission we’re doing, and I could step away for the prayer, but it would be uncomfortable. So legally speaking, no, there is not more leeway when deployed — but practically speaking, there is.
Photo by @rdne
MM: We’ve spoken about negative experiences with chaplains and military leadership. But is there anything beneficial about the military’s unique systems?
SM: Yes, there is something important to mention here. Related to the mental health piece, chaplains do enjoy confidentiality. Military Rule of Evidence 503 basically says that anything you tell a chaplain or chaplain’s assistant while they’re acting as a spiritual advisor is protected. For example, if you’re going in to talk to a chaplain and you confess something, whether it’s for religious reasons or what’s called an act of conscience, that is protected by Rule 503’s confidentiality provision.
Interestingly, communications with chaplains actually have stronger protections than with military mental health professionals. Statements to military mental health professionals have a lot more exceptions to confidentiality than statements made to chaplains.
Sometimes military members who get into trouble are told to go talk to the chaplain. The service member has the same level of confidentiality with their military defense counsel, but sometimes people don't want to be seen going into that office. By going to the chaplain, the person can talk about things openly.
However, it may be a huge ask for a queer person, or member of the Muslim or Jewish faith, who is relying on somebody of a completely different faith to help in a situation and expect them to keep your confidence.
That is the law, though, and this is a very valuable service that they perform. It’s obviously very important that chaplains are not discriminating against people who are seeking their assistance for that critical purpose.
If you’re in the military community and have experienced LGBTQ+ and/or HIV+ discrimination, please report it on Modern Military’s discrimination reporting form. Submitting your experience helps us collect this important data and potentially advise, refer, or assist you.
Cover photo credit: @willythewizard
