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Nov 00 Study
- exec summary
- methodology
- context
- history
- cases
- policy
- assessment
- conclusion

V. A HISTORY OF BRITAIN’S MILITARY POLICY CONCERNING SEXUAL MINORITIES

Like most of its NATO allies, the British military has faced conflicting pressures since the end of the Cold War. Troop strength has been reduced by 30%, and the percentage of GDP devoted to defense decreased from 5.2% in 1984-85 to approximately 2.8% in 1997-98 [14 - This figure is based on 1995 estimates.  See Dandeker (2000)] (Dandeker, 2000). At the same time, the scope of peacekeeping missions has expanded considerably, and the Armed Forces has had to prepare itself for a wider variety of operations due to changing defense roles. The British Services has also faced recruiting shortages since 1992 [15 - See also Smith, (2000); Smith, (2000a); and Schofield, (2000)] (Tweedle, 2000). The military has responded to these constraints in part by developing a recruitment initiative, increasing the use of reserves and by civilianizing and outsourcing some jobs previously performed by soldiers (Dandeker, 2000; Kirkbride, 1996).

Until January 2000, gay and lesbian soldiers were prohibited from serving in the British Armed Forces. Prior to 1967, British civil and military law were congruous with respect to male homosexuality — sodomy was illegal, and both civilians and soldiers could be imprisoned for homosexual activity. The 1967 Sexual Offences Act decriminalized gay male sex for civilians, but it included an exemption that allowed the British military to continue to prosecute servicemembers engaging in gay sex (Rayside, 1998; Harries-Jenkins and Dandeker, 1994). Gay soldiers could also be administratively discharged from the Services. While civil law did not cover same-sex female sex, however, the military was able to discharge lesbians under the offense of general misconduct [16 - Because lesbian soldiers were not guilty of any crime under British statutes, they did not receive legal protections such as the right to counsel in their defense (Heggie, Personal Communication, October 2, 2000)]. Offenses for homosexuality were usually charged as "disgraceful conduct of an indecent kind", "conduct prejudicial to good order or discipline", or more rarely "scandalous conduct by officers" (Harries-Jenkins and Dandeker, 1994).

In the wake of considerable Parliamentary debate on the subject during discussions about the 1991 Armed Forces Bill, the government acknowledged that the military exemption from the 1967 Sexual Offenses Act was no longer justifiable. In June 1992, the Ministry of Defense (MOD) announced an administrative order to immediately halt criminal prosecution for sexual activities that were legal for civilians under the 1967 act. The British restricted court-martials for homosexuality to those male servicemembers who were found to have had sex in public or with anyone under the age of 21. The legislative reconciliation of military and civilian law occurred later with the passage of the 1994 Criminal Justice Act. The military persisted in maintaining, however, that both male and female homosexuality were incompatible with military service. Gay and lesbian soldiers continued to face discharge if their sexual orientation was discovered (Harries-Jenkins and Dandeker, 1994).

Figures for the number of gay and lesbian service members discharged while the ban was in place vary among sources. Estimates range between 60 and 100 each year between 1988 and 1995 [17 - See Davies (1992); Campbell and Wharton (1995); Beaumont and Mcsmith (1995); O’Kelly (1995); Guardian (1995); Majendie (1995); Davies (1997); Macklin (1999); Cullen (1999).]. Harries-Jenkins and Dandeker report that 296 service members were administratively discharged between 1988 and 1992, while an additional 39 soldiers were dismissed following conviction for an offense involving homosexuality during the same period (Harries-Jenkins and Dandeker, 1994, p. 193) [18, 19 - Harries-Jenkins and Dandeker report the following conviction rates by Service: 9 in the Navy, 22 in the Army, and 8 in the Air Force. Discharge figures for earlier periods are not available, because the Ministry of Defense did not keep track of such statistics (Hall, 1995).  See also Hall (1995a)]. When factoring in servicemembers who left without being discharged, Evans surmises that as many as 150 soldiers departed the military each year due to the policy on sexual orientation (Evans, 2000). Because the British Services did not keep statistics about the cost of the policy, no definitive figures exist about the fiscal impact of the ban on sexual minorities. Using GAO figures for the U.S. and extrapolating them to the British case, Edmund Hall estimated that the restrictive policy cost the British military L40 to 50 million between 1990 and 1995 (Hall, 1995) [20 - The U.S. GAO figures are based on training replacement costs and do not include the administrative costs of investigation and discharge.  See GAO (1992)].

Prior to 1994, the Royal Navy was the only branch of the Armed Forces that maintained specific guidelines related to homosexuality [21 - Army and Air Force commanders discharged homosexual servicemembers under Section 64 (Disgraceful Conduct by Officers), Section 66 (Disgraceful Conduct of an Indecent Kind), and Section 69 (Conduct Prejudicial to Good Order and Service Discipline) of the 1955 Army and Air Force Acts, while the Royal Marines used Sections 36, 37 and 39 of the Naval Discipline Act of 1957.  Royal Navy regulations, which were enforced at least until 1992, lumped together homosexuality with transvestism, sadism, masochism and ‘other forms of sexual deviancy’ (cited in Hall, 1995, p. 75)]; the other Services dealt with homosexuality through general regulations. The Navy’s guidelines provided the following instructions for medical officers when dealing with suspected gay or lesbian personnel:

The guidelines also suggested that investigators seek to determine "whether the man may have played the passive role" and recommended that the agent "look for feminine gestures, nature of clothing and use of cosmetics" (Hall, 1995, p. 76).

In 1994, the Ministry of Defense issued Service-wide regulations concerning homosexual soldiers. The new regulations maintained the policy of barring homosexual service, but they standardized policy and provided more detailed protocol. Any recruit who admitted to being gay would not be allowed to enlist, and any servicemember who was discovered to be homosexual would be discharged from the military. Homosexual sex between adults of consensual age would not be considered a criminal offense, but the military could prosecute a gay or lesbian soldier for otherwise consensual sex if "the act was to the prejudice of good order and Service discipline" [22 - The instructions list this as an example only, leaving room to prosecute servicemembers on other grounds as well.  See Ministry of Defense, 1994, Annex 1] (Ministry of Defense, 1994, Annex 2). All recruits were to be informed that homosexuals were not allowed to serve in the British Armed Forces. The 1994 policy made it clear that homosexual orientation as well as homosexual behavior would be a bar to enlistment and service:

The 1994 policy also included instructions for medical officers [23 - The instructions applied only to those with a ‘medical qualification’.  Nurses and medical assistants were not to undertake any form of examination of a gay or lesbian soldier; they instead were to refer all such cases to medical officers ‘as a matter of urgency’ (Ministry of Defense, 1994, Annex A)] in dealing with homosexual service personnel. The guidelines informed medical officers that "homosexuality is not in itself a medical condition" and "intimate examinations are not indicated purely on the grounds of homosexuality" (Ministry of Defense, 1994, Annex A). The medical officer was to be consulted to confirm the orientation of a professed homosexual, to advise commanders in dealing with cases of homosexuality, and to insure the emotional stability of the soldier in question. If a gay or lesbian soldier was referred to the medical officer after his or her sexual orientation was already known, the health practitioner’s job was to "assess the individual’s physical and mental wellbeing, including the need for onward referral to specialist services if required" (Ministry of Defense, 1994, Annex A). The Ministry of Defense recognized that revelation of one’s homosexual orientation could be psychologically devastating in the context of the military’s ban on sexual minorities:

The military’s need for information about gay and lesbian soldiers did, however, outweigh any medical confidentiality rules. If a soldier’s sexual orientation was already known and the purpose of an interview was therefore not to establish sexual identity, the medical officer might still be required to discuss the "health and psychological development" of the soldier with a commanding officer (Ministry of Defense, 1994, Annex A). While the medical officer was advised to obtain the consent of the servicemember, disclosure would be expected even if consent was not procured. If a servicemember was acknowledging his or her orientation for the first time, the individual was to be informed that:

Commanding officers could handle cases of suspected homosexuality with their own staff or through official investigatory channels (Ministry of Defense, 1994, Annex A). Military investigations were conducted by each service’s police forces: the Royal Military Police (RMP) and Special Investigating Branch for the Army, the RAF police and Security Services (P&SS) for the Air Force, and the Royal Navy’s Regulating Branch and Special Investigating Branch (SIB). Investigations could include undercover surveillance, lengthy questioning, medical examinations, and searches through personal materials to uncover information about other homosexual soldiers (Hall, 1995).

Former servicemember Joan Heggie experienced investigations for suspected homosexuals as both a military policewoman and a target of investigation. She describes common tactics used during her tenure with the British Army in the late 1970s and early 1980s:

Heggie added that, in such a restrictive environment, "Every day I woke up thinking ‘Today might be the day that I get kicked out’" (Personal Communication, October 3 and 16, 2000). Other former service personnel have told of the military using information from blackmailers, staking out local gay bars and pubs, asking detailed and embarrassing questions about sexual practices in interrogations, and even recommending shock aversion treatment (Nunn, Personal Communication, October 17, 2000; O’Kelly, 1995; Mills, 1995; Hall, 1995).

Ministry of Defense officials in told journalist Edmund Hall in 1995 that they did not believe the police routinely carried out surveillance of gay and lesbian establishments. They did, however, acknowledge that individual surveillance probably occurred. One Ministry of Defense official declared:

General Sir Charles Guthrie, Chief of the Defense Staff, admitted at the time of the removal of the ban that military police investigations of suspected gays and lesbians sometimes "went too far" and expressed regret at the way some interrogations had been carried out (cited in Evans, 2000). The European Court of Human Rights also condemned the investigations of the plaintiffs as "exceptionally intrusive" in their ruling against the Ministry of Defense (Evans, 2000).

The British Armed Services’ exclusion of homosexuals from service, even after gay sex was decriminalized by Parliament in 1967, stemmed from the conviction that the unique conditions and objectives of the military precluded behavior that was acceptable in civilian life. Defense Minister Nicholas Soames commented in 1996 that:

Military commanders argued that the sacred duties of the Armed Forces - to protect the nation from harm and to advance Britain’s interests even at the expense of loss of life - necessitated considerable caution when advocating changes in military organization or the composition of personnel. The inclusion of gay and lesbian soldiers was viewed as social engineering that could damage the integrity of military units.

The unique conditions specified by military officials included cramped living conditions, same-sex facilities and the dependence on one’s comrades in life-threatening situations. Given extended excursions at sea and on foreign missions, military personnel often live under conditions of minimal privacy. First Sea Lord Admiral Sir Jock Slater declared in 1995 that:

Military leaders argued that the intimacy of living together in same-sex barracks, showering together, and sharing toilet and washing facilities made homosexual service impractical (see The Lawyer Online, 1995). They further contended that heterosexual servicemembers would feel uncomfortable showering or sleeping next to a homosexual soldier.

British commanders also asserted that the friction that could arise between gay and lesbian soldiers and their heterosexual colleagues would undermine morale and unit cohesion and even threaten the success of its operations. Soldiers need to depend on their comrades in life-threatening situations. Commanders argued that the introduction of distrust or ill-will among individuals within a unit due to differences in sexual orientation could have disastrous consequences on the effectiveness of that unit. Defense Minister Archie Hamilton argued during a 1991 debate in Parliament:

The 1994 regulations regarding homosexuality explicitly included concerns about operational effectiveness as well:

Much was also made of the need of the military to protect its youthful servicemembers from the danger of homosexual sexual predators. One third of the British Armed Forces recruits in the mid 1990s were under the age of eighteen. Military officials argued that removal of the ban would result in "sexual exploitation by older, more senior, personnel" (cited in Harnden, 1996). Not only did the service chiefs feel they had a duty to protect the minors in their care, but they also worried that the potential for sexual abuse could also jeopardize recruitment among young men and women [26 - See also Mills (1995)]. Air Chief Marshal Sir John Willis warned in 1995 that "the confidence both of young people to join the Armed Forces, and their parents to permit them to join the Armed Forces, would be seriously damaged" (The Lawyer Online, 1995).

This research is reproduced with the kind permission of Professor Aaron Belkin and can be found in its original context on the Center for the Study of Sexual Minorities in the Military website.

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updated: 26 Aug 05