The pink badge of courage

Four gay ex-service personnel are taking their case for unlawful dismissal to appeal in London. Martin Bowley argues that experience in the United States shows how discrimination can be fought, and beaten, in the courts

On 10 October the case of four gay ex-service personnel claiming that their dismissal from the armed forces was unlawful reaches the Court of Appeal, and is then likely to go to the Lords and the Court of Human Rights in Strasbourg. The Ministry of Defence is reviewing its policy.

From what I learnt on a visit to the United States last month, President Bill Clinton's "Don't Ask, Don't Tell" compromise would be an unhappy example to follow. In practice, it appears to be having no effect on the number of lesbians and gay men discharged on grounds of sexual orientation.

In the first full year of the policy, the rate of discharge of homosexuals as a proportion of the total active force has remained constant with the figures for the previous three years. The Service Members Legal Defense Network, which monitored almost 200 cases in that year, concluded that this is the result of widespread violations of the policy. From those cases the Network has identified no less than 340 violations, a pattern that it states "often renders the `Don't Ask, Don't Tell, Don't Pursue' policy little more than `Ask, Pursue and Harass'."

Witch hunts continue, the worst reported being in the Marine Corps in Okinawa in the spring of 1994, when at least 21 service members were questioned about the sexual orientation of themselves and other service members.

The good news comes from the federal courts, where the policy has been the subject of sustained and often successful attack. The leading case so far is Able vs Perry, in which in March 1995 the federal district court for the Eastern District of New York ruled that the policy violated the plaintiffs' freedom of speech under the First Amendment and their equal protection rights under the Fifth Amendment, and entered a permanent injunction in favour of the plaintiffs.

The arguments before the court were very similar to those advanced in the Divisional Court in London - communal showers made their inevitable appearance, as did references to "the cohesion, morale and esprit of the Armed Forces".

In his comments Judge Nickerson was as trenchant as Lord Justice Simon Brown was in the Divisional Court. Just a few of them should give a flavour of the judgment:

"This heterosexual animosity towards homosexuals is by its terms based on irrational prejudices."

"Common sense suggests that a policy of secrecy, indeed what might be called a policy of deception or dishonesty, will call unit cohesion into question. The policy of the Act is not only inherently deceptive. It also offers powerful inducements to homosexuals to lie."

"Heterosexual and homosexuals alike would be entitled to think it demeaning and unworthy of a great nation to base a policy on pretence rather than on truth. To invite someone with a homosexual orientation to join the Services, then to throw them out solely because that orientation is revealed from something he or she said, and finally to pretend that the discharge was not because of the person's orientation, might appear to all members, heterosexual and homosexual, less than honourable, with incalculable effect on high morale, good order, and discipline and unit cohesion."

Certainly the plaintiffs in Able vs Perry were as carefully selected as the applicants in our Ministry of Defence case, to ensure that they could not be attacked on personal or professional grounds. New York was equally carefully chosen as a liberal jurisdiction with a liberal appeal court.

The decision has been appealed by the US government to the Second Circuit Court of Appeals, and oral arguments are expected to be heard this autumn. Ultimately, it will arrive before the Supreme Court - perhaps in two or three years' time - about the same time as the Ministry of Defence case will be heard by the European Court of Human Rights.

But New York is not the only liberal jurisdiction. Colonel Margarethe Cammermeyer, a highly decorated Vietnam veteran and Chief Nurse of the Washington State National Guard, was discharged under the old regulations after she had truthfully answered a question regarding her sexual orientation during a routine investigation for a security clearance upgrade. In June 1994, Judge Zilly ruled that both her equal protection and due process rights under the Fifth Amendment had been violated and ordered her reinstatement. Again the US government has appealed and oral arguments are rescheduled for the autumn. And it was only last month that the same judge issued an injunction preventing the US Navy from discharging Lieutenant Rich Watson before his challenge to the constitutionality of the discharge policy is heard.

Watson is a 13-year career submarine officer and an assistant professor of military sciences at Oregon State University. In October 1994 he informed his superiors of his sexual orientation to stop attempted blackmail.

Ultimately, both here and in the United States, we must place our faith in the courts, and as far as we are concerned the European Court of Human Rights is our best and brightest hope. The Clinton experience, where the President was prepared to take the votes, and the money, of the gay community in his 1992 campaign and once in office capitulated cravenly to pressures from the Chiefs of Staff and the military establishment - is hardly cause for optimism if the issue is left to the politicians.

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