Originally published on Advocate.com September 16 2003 12:00 AM ET
A federal appeals court on Friday ruled that a gay doctor discharged from the U.S. Air Force may not have to pay $71,500 to the government for his medical education. John Hensala, 38, obtained free medical school funding from the U.S. Air Force in exchange for a promise to serve four years as a military doctor. But when he was ordered to report for duty, he notified the service of his sexual orientation and told authorities he would be living with his boyfriend at Scott Air Force Base in Kansas, where he was to report in 1995. The military discharged him under the "don't ask, don't tell" policy barring openly gay men and lesbians from military service, and demanded he return the $71,500 the government had spent on his education. Hensala sued, saying he didn't have to pay.
The service promised to pay for his education if he fulfilled his four-year obligation. But the policy also demanded that he pay for it if he did not fulfill his contract. The case does not test the military's ability to discharge gay men. That policy has already been upheld by the San Francisco-based ninth circuit U.S. court of appeals, which said the discrimination was justified to promote "unit cohesion" and military preparedness. But judges Sidney Thomas and Richard Paez of the appeals court announced Friday that it may be discriminatory to require gay people to pay back the government for their education if they were forced from the service against their will.
In his dissent, Judge A. Wallace Tashima said the Air Force, under its so-called recoupment policy, does not discriminate against gay men. The Air Force, he said, routinely requires repayment for education expenses if the benefactors do not honor the terms of their contracts, irrespective of a service member's sexual orientation. The majority ordered the case returned to U.S. district judge William Alsup, possibly for a trial. In 2001, Alsup dismissed Hensala's suit against the Air Force before trial. Alsup said Hensala should be required to pay back the government because he voluntarily came out as gay and should have known the consequences of violating the military's "don't ask, don't tell" policy. Hensala claimed he had no reason to believe he would be automatically discharged after his announcement but did so to come out of the closet. The Air Force contended that Hensala announced he was gay simply to avoid active duty. "Making him pay is adding insult to injury," said Hensala's attorney, Clyde J. Wadsworth. "It's a further penalty. He wants to serve, but he cannot. That's not a justified reason to discriminate against a gay service member."