WASHINGTON — A gay rights group sued the Justice Department on Wednesday for failing to produce hundreds of pages of documents related to a 1953 order signed by President Dwight Eisenhower that empowered federal agencies to investigate and fire employees thought to be gay.
The suit in U.S. District Court accuses the government of conducting an inadequate search for the material and of groundlessly withholding some records on the basis of national security.
Executive Order 10450 allowed broad categories of federal workers, including those with criminal records, drug addiction and “sexual perversion,” to be singled out for scrutiny and termination as threats to national security. Suspicions of homosexuality led to the firings of between 7,000 and 10,000 workers in the 1950s alone, according to a 2014 report from the Merit Systems Protections Board.
“We want to know, and history needs to know, how this thing was administered and how it was enforced, and what was the dynamic inside the Justice Department and the FBI driving” it, said Charles Francis, president of the Mattachine Society. The gay rights research and education organization has sought since 2013 to obtain the records.
“This is an issue of public importance — how your government treats people who work for it, how your government has historically targeted people based on their LGBT status and destroyed their lives,” said Paul Thompson, a partner at McDermott Will and Emery LLP, the law firm that filed the Freedom of Information Act suit. “People are paying attention to this right now.”
The Justice Department had no immediate comment on the suit.
Eisenhower’s order came at a time of widespread anti-gay discrimination authorized at the highest levels of government, including a 1950 Senate subcommittee report that concluded that gays were unsuitable as federal employees.
Under a “sex deviate program” put in place by FBI Director J. Edgar Hoover, agents were directed to “completely and fully” investigate anything about a prospective employee’s sexual orientation developed during background checks. A May 1950 FBI bulletin to local police agencies told officers to make a notation on arrest fingerprint cards if anyone they arrested on suspicion of being a “sex deviate” worked for the federal government. The FBI collected those cards.
The executive order went a step further by effectively approving of the investigation and firing of federal workers believed to be gay.
The government now makes it explicitly illegal to discriminate against federal employees on the basis of sexual orientation. President Barack Obama in 2014 signed an executive order to prohibit federal contractors from discriminating against gay workers, though he lamented that being gay can still be a fireable offense “in too many states and too many workplaces.”
While the government’s position has changed dramatically since the 1950s, debate about the scope of LGBT rights persists in state legislatures and courthouses. Francis said the documents sought in the suit would help reveal early and overt anti-gay bias that lingers in some corners.
“The evidentiary history is critical to see the roots of the animus,” he said.
Documents culled from the National Archives, libraries and other sources have shed light on the order, but Francis’ group believes nearly 900 additional pages that have been withheld could help flesh out the portrait.
“We put the puzzle together but we’re still missing an ocean of material,” he said.
The organization requested documents in January 2013, including all correspondence involving Warren Burger, a senior Justice Department official tasked with helping enforce the order who later become chief justice of the Supreme Court. The suit says more than 800 documents have been turned over, but 891 have been withheld, including any records related to Burger.
The FBI has invoked exemptions to the public records law, including a provision that protects against the disclosure of classified information for national security reasons. Thompson said he found that assertion “particularly troubling” because national security was the rationale of the order in the first place.
“What the lawsuit is for us is the final step in us saying, ‘No, we really are serious’,” Thompson said. “We are serious, and we’re not going to stop until we feel like we have exhausted all possible avenues to obtain these records.”
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