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Can your private sexual behavior result in security clearance revocation?

| Apr 2, 2021 | Uncategorized |

As citizens of the liberal democracy that is the United States, we enjoy tremendous personal freedoms not shared by every nation. We have the liberty to generally do the things we want in privacy, as long as these actions don’t unduly harm others.

However, this liberal philosophy of individual freedom does not hold up as well for people holding military jobs requiring security clearance. While in most careers it would be considered overreach or even discrimination for an employer to fire employees for private sexual behavior, in security clearance jobs, it is standard practice.

Examples of sexual behavior that could result in revocation

“Sexual behavior” is the fourth of 13 things the Department of Defense will look at when considering granting or revoking clearance, and there are numerous sexual activities that could result in clearance revocation.  Some of these are obviously illegal and dangerous, like rape and sexual harassment.

But there are also examples of sexual behavior that can also cause revocation of your security clearance, examples that are more common, less insidious, and more private, including:

  • Adultery: While still illegal in some states, most people wouldn’t think of adultery as something one would lose their job over. Yet it could show indiscretion and possibly being compromised to share secret information.
  • Pornography: Even assuming the pornography being consumed is of a legal nature, frequent pornography use and addiction could suggest lack of self-control. Further, if the technology used to access pornography is government issue, this goes to reckless, irresponsible behavior that should not be given the same level of trust.
  • General promiscuity: Frequent, multiple sexual partners, public sexual activity and use of technology to arrange sexual encounters (like Ashley Madison) could result in the revocation of your security clearance.

These are a few of the types of sexual behaviors that you might not think could result in revocation of your clearance.

Isn’t this discrimination?

How can an employer revoke your security clearance (and thus cause you to lose your job) because of your private conduct? On the surface, this looks like textbook discrimination. Especially in light of recent Supreme Court cases like Lawrence v. Texas and Bostock v. Clayton County, which extend constitutional protection against discrimination to various sexual activities, preferences and identities.

Although clearance revocation for private sexual behavior can seem to be discriminatory on the surface, it is not as simple as that. The Department of Justice is given almost unlimited discretion with security clearance claims. The idea is that certain behaviors, even if legal, can suggest a higher likelihood of risky behavior that could compromise national security.

Further, part of accepting a national security job is freely forfeiting some of those basic rights to privacy. Because the security of the entire country is at stake, the military has liberty to limit the privacy of those with security clearance in order to protect the nation.

You still have rights and options

Although there are good reasons and legal protections for security clearance revocations resulting from risky sexual behavior, you still have rights. You should not simply accept whatever results might come from a clearance review without putting up your best defense. Talk with an experienced military lawyer who can help you through the process and make sure you give yourself the best chance possible to keep your security clearance.