The US Congress is poised to get rid of the military’s “Don’t ask, don’t tell” policy, which prevents gay and lesbian people from serving openly in the armed forces. The proposed repeal has been tucked into a defense-spending bill that is to be considered soon by the Senate, having already passed the House of Representatives. Lingering anxieties about the change can be seen in the results of a recent survey commissioned by the Pentagon to assess likely attitudes toward it. Among other things, the survey seeks to find out if troop members have ever shared a room or shower with a homosexual colleague.
The discussion in the US mirrors what took place in the UK before the European Court of Human Rights’ decision on Lustig-Prean and Beckitt v the United Kingdom in 1999 that eliminated the service ban on gay and lesbian people in the military. In 1994, the Armed Forces’ Policy and Guidelines had stated that homosexuality — whether male or female — was “incompatible” with service in the armed forces, citing “the close physical conditions in which personnel often have to live and work.”
A Homosexuality Policy Assessment Team, established by the UK Ministry of Defence, reported in 1996 that gay and lesbian people were “no less physically capable, brave, dependable and skilled than heterosexuals.” Nevertheless, the team recommended that the ministry “must deal with the world as it is” and that “service attitudes, in as much as they differ from those of the general population, emerge from the unique conditions of military life and represent the social and psychological realities.” As such, the report concluded that there was “military risk from a policy change.”
The Lustig-Prean and Beckitt decision acknowledged that the government had a “legitimate aim” in ensuring the operational effectiveness of the armed forces. The court, however, ruled that the assessment team represented “predisposed bias on the part of a heterosexual majority” and that these negative attitudes based on sexual orientation would not sufficiently justify an interference with one’s private and family life, any more than it would if the interference were based on race, origin or color. The court also noted the developing views and associated legal changes in the domestic laws of other states within the European Convention on Human Rights system.
In the context of such a supra-national system, the reference to practice in other member states is significant in understanding how gay rights have developed in the UK. Robert Wintemute, a professor at King’s College London, has argued that a “European consensus” theory plagues the jurisprudence concerning gay and lesbian issues in that court decisions do not fall wholly on juridical logic, but are heavily influenced by what already constitutes practice in other member states.
Because it is a court of several nations rather than a national constitutional court, its judgments consider the best management of sensitive matters — called the margin of appreciation — with some amount of political expediency. Critics say this has spawned a “minimum standard of European human rights” rather than affirmed a natural progression of juridical reasoning.
The repeal of “Don’t ask, don’t tell” is advancing through the US federal legislature and not the courts. There is a school of thought in the US that a significant change such as this is appropriately made in Congress — reflecting democratic will — and not through the courts by “activist” judges. According to the terms of the repeal, the date for giving effect to the end of this policy is contingent on completion of a Pentagon study certifying how best to integrate openly serving gay and lesbian people in military ranks.
Clearly, massive political considerations always follow major gay rights reforms everywhere in the world. Whether these questions are being decided in the legislature or courts, the most important point is that the substantive human rights arguments win the day. On that score, the US should look to the UK and repeal “Don’t ask, don’t tell” expeditiously, without any reservations.
Philip Dayle is a lawyer who has worked in human rights at the Inter-American Commission on Human Rights in Washington and the International Commission of Jurists in Geneva, Switzerland
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