Last year, I wrote about how some clearance holders chafe at the idea of the government questioning their private sexual interests. Among the many examples I listed of potential security concerns were unusual fetishes or any other sexual behavior that deviates from generally accepted societal norms to the point that it may raise questions about judgment and/or create a perceived blackmail issue.
As I acknowledged at the time, a lot of this is subjective. Unfortunately, so are most things in the world of security clearances. The National Adjudicative Guidelines for Security Clearances are so broadly written that almost anything can be shoe-horned into the definitions of potentially disqualifying conditions.
The Last Frontier of the Law: Security Clearances
In virtually every other area of the law, this is where the courts come in as independent arbiters. But as I often tell my clients, security clearances are one of the last frontiers of the law. Courts are generally precluded from reviewing the merits of security clearance denial and revocation cases, meaning that federal agencies are allowed to get away with an awful lot that would never stand up to independent, objective scrutiny. When I am asked to assess whether certain sexual behavior (or anything else) may preclude someone from obtaining or retaining a security clearance, much of that assessment comes down to experience and anecdotal evidence from past cases, as opposed to clear rules of law and published precedent.
There are some exceptions – the Departments of Defense and Energy publish their clearance denial and revocation cases – but there is no similar public repository for other agencies, not to mention anywhere to find the myriad suitability denial cases that occur every year across the government. While all agencies are supposed to be operating under uniform standards, in practice there can be wide disparities from agency to agency on how certain issues are viewed.
Cosplay, Furries, and Fetishes
Given all that subjectivity and ambiguity, I thought it might prove helpful to some clearance holders and applicants to elaborate a bit more on one particular area of behavior that almost uniformly gives rise to security concerns: costumed role-playing of a sexual (or perceived sexual) nature. I’m not talking about things that you do in the privacy of your bedroom with your significant other; I’m talking about behaviors that are indiscreet and perceived as risky, often involving communities of like-minded individuals established through the internet.
Involvement in these groups can be a tough sell for people who don’t share the interest – including the buttoned-up security-types that populate most federal agencies. If this is your jam, be prepared for a psychological evaluation request and some intense questioning about sexual proclivities if your interests come to the attention of security officials during the background investigation process.
That usually happens during a polygraph examination, but it can also arise in other contexts, too: if volunteered by the applicant in response to a common question about blackmail potential; if reported by a third-party (like a reference); or if disclosed by the applicant on a supplemental screening questionnaire common in the intelligence community and in some other situations like suitability screening for Presidential Support Duties.
Security Clearance Applicant Responsibilities
Depending on the agency and the individual situation, these activities can sometimes pass muster. But more often, applicants find themselves at least initially unable to overcome questions about judgment and blackmail potential. That starts the security clearance appeal process, where the onus will be on the applicant to demonstrate that it is clearly consistent with the interests of national security to grant or reinstate their security clearance.
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.
