In the grand scheme of history, it wasn’t long ago that sexual orientation was considered a legitimate basis for the denial or revocation of a security clearance. That’s (mostly) no longer true; the government has a policy now against using sexual orientation, standing alone, as the basis for deeming someone a security risk. In rare cases, however – when the individual’s sexual orientation is a closely-guarded secret, and thus a potential blackmail issue – it can still be relevant (albeit mitigable by telling family and friends, thereby eliminating blackmail potential).
When the policy shift happened decades ago, the sexual orientation at issue was generally understood to mean homosexuality. These days, it seems there is considerable public debate about the outer limits of sexual orientation, not to mention issues like gender identity. At the same time, I’m seeing in my law practice more cases of heterosexual individuals seeking sexual gratification in unexpected and surprising ways, thanks in large part to the internet.
This begs the question: can the government legally justify using a clearance holder’s legal sexual proclivities or interests, other than sexual orientation that isn’t a blackmail issue, against him or her as a national security issue?
Guideline “D” of the National Adjudicative Guidelines for Security Clearances covers sexual activity. Read it and you may be surprised at exactly how broad and ambiguous the language is. Whether certain sexual behavior reflects a “lack of discretion or judgment” is, for example, considered by many to be a product of individual opinion and moral beliefs. Similarly, what makes one person vulnerable to coercion, exploitation, or duress may not be the same for the next person.
Some of my clients are particularly shocked to learn that disqualifying conduct can include that which occurs solely via electronic means (e.g., sexting, homemade pornographic videos, etc.). Ironically, it’s that sort of conduct that is often most ripe for blackmail because of the evidence it creates.
I realize that some people may chafe at the prospect of the government questioning their private, legal, and consensual sexual activities. After all, the right to privacy in these areas has largely been held by the U.S. Supreme Court to be constitutionally protected. Nonetheless, the government can and does still push sexual behavior as an issue in security clearance cases based on a narrow constitutional carve-out. It thus behooves every clearance holder to understand where the line is.
I can’t cover every conceivable scenario here, but – at the risk of making some readers blush – here are a some activities that I’ve seen get people into trouble: group sex; illicit affairs; participation in sexually-themed interest groups promoting unusual or deviant activities (again, note the subjectivity); bizarre or high-risk fetishes; voyeurism; the viewing of “anime”-style pornography with characters of ambiguous age; participation in web cam shows; running an “Only Fans” account or filming pornography; and hiring one’s self out for legal but sexually-themed activities (e.g., BDSM).
If you’re thinking “there can’t be clearance holders doing all of that”, I can assure you that, yes, there most definitely are. If you’re one of them, you may want to reassess the importance of that activity to your life – especially relative to your paycheck. If the activity or interest comes out on top, that’s certainly your prerogative, provided the activity is legal. Just know that you may eventually be forced to put your money where your mouth is – no pun intended.
This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied. Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation.
