US ten years behind Britain on gay soldiers

20 December 2010 by Adam Wagner

Updated | Following the US Senate’s vote to repeal the ban on gay soldiers serving in the US military, it is interesting to compare the situation in the British Army, where gay soldiers have been allowed to serve since 2000.

The UK government was in fact forced to change its policy following a series of court rulings, as the US government might have been if the “don’t ask, don’t tell” policy had made it to the Supreme Court, which was looking inevitable before the Senate vote.

The British Army lifted its ban on gay soldiers in 2000, following two 1999 rulings of the European Court of Human Rights to the effect that in investigation into four servicemen and women’s sexuality violated the applicants’ article 8 (private and family life) and article 13 (effective remedy) rights. The cases involved a man and a woman who had been dismissed by the Royal Air Force and 2 men who had been dismissed by the Royal Navy  for being homosexual (see, respectively, Smith And Grady v United Kingdom and Lustig-Prean and Beckett v UK; also, the 2002 case of Beck, Copp and Bazeley v UK).

In Smith and Grady, the Strasbourg court accepted that lifting the ban could lead to problems, initially at least:

in the light of the strength of feeling expressed in certain submissions to the HPAT and the special, interdependent and closely knit nature of the armed forces’ environment, the Court considers it reasonable to assume that some difficulties could be anticipated as a result of any change in what is now a long-standing policy. Indeed, it would appear that the presence of women and racial minorities in the armed forces led to relational difficulties of the kind which the Government suggest admission of homosexuals would entail (para 100)

However, those problems were solvable:

The “robust indifference” reported by the HPAT of the large number of British armed forces’ personnel serving abroad with allied forces to homosexuals serving in those foreign forces serves to confirm that the perceived problems of integration are not insuperable (para 59)

This “robust indifference” reflects the findings, ten years later, of an exhaustive Pentagon study of US soldiers’ attitudes which paved the way to Saturday’s Senate vote. Ultimately, given the soldiers’ reported views, the European court was unconvinced that the government’s concerns regarding openly gay solders could legitimately justify a ban:

In such circumstances, the Court considers that the Government have not offered convincing and weighty reasons justifying the continued investigation of the applicants’ sexual orientation once they had confirmed their homosexuality to the air force authorities. In sum, the Court finds that neither the investigations conducted into the applicants’ sexual orientation, nor their discharge on the grounds of their homosexuality in pursuance of the Ministry of Defence policy, were justified under Article 8 § 2 of the Convention. (para 109)

The British ban was duly lifted in 2000. Following some initial reluctance, the British Army now openly encourages the recruitment of gay soldiers and there have been a number of advances towards full equality.

Last year the Army’s official magazine featured a gay serviceman on its cover for the first time. In summer 2008, the Ministry of Defence announced that soldiers could wear their military uniform at gay pride festivals. In March, a civil partnership celebration was held at the Household Cavalry’s Warrant Officer mess.

The Army even claims that lifting the ban has made the Army more productive. Following an initial vote in the US Senate on the don’t ask don’t tell issue, Colonel Mark Abraham, head of diversity for the British Army, told People magazine that:

A lot of gay and lesbian soldiers who were in the army before the ban was lifted, reported that a percentage of their efforts was spent looking over their shoulder and ensuring they weren’t going to be caught. That percentage of time can now be devoted to work and their home life, so actually they are more effective than they were before.

Of course, allowing openly gay soldiers into the military marks the beginning, not the end, of the road to full equality. It is no surprise that gay soldiers can still suffer discrimination in the often macho Army environment. But the British Army is clearly working to remedy this, and the US military will be taking notes now that its own ban is to be confined to history.

The US “don’t ask, don’t tell” policy never actually reached the US Supreme Court, although it is interesting to speculate what would have happened if it had. SCOTUSblog points out that since the newest justice, Elena Kagan, had taken several actions on cases testing the constitutionality of the policy in her former role as U.S. Solicitor General, she would probably have to recuse herself from the case. This could have meant a court split 4-4 along ideological lines. Or it could have followed its European equivalent and ruled that the ban was an unlawful restriction of rights.

The justices of the US Supreme Court will be relieved to avoid ruling on the controversial issue of gays in the military. But it may have no such luck on gay marriage rights, with a case currently winding its way towards the Washington-based court. If it decides to follow a recent European Court of Human Rights ruling on the issue, allowing a wide margin of appreciation for states, then campaigners will have to look again to Congress for change.

It is always interesting to compare rights protections in the UK and the US. Whilst the US Constitution provides better protection of, for example, freedom of speech, the UK (and Europe in general) appears to be moving more quickly on gay rights, probably as  result of opposition to homosexuality from powerful religious groups in the US. Given the findings of the Pentagon review in relation to changing attitudes, it will probably not be long before gay soldiers are being openly encouraged to sign up to the US military, as they are in Britain.

Update, 22 December 2010: The legislation has been signed by President Obama, so the ban has been repealed.

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