Whether gays and lesbians may serve openly in the armed forces is an issue that continues to confront courts and legislatures around the world. At least twenty-five countries currently permit gay and lesbian service members. Some countries never introduced an express ban on military service, while in others bans were repealed either through legislative or judicial action. The issue is often hotly debated. In South Korea, in October 2010, the Human Rights Commission found that a military law criminalizing same-sex sexual conduct was in violation of gay soldiers’ rights to equality and privacy. Less than six months later, in 2008 Hun-Ga21, the Constitutional Court of South Korea reached the opposite conclusion and upheld the law.
The impetus for legislative reform has often originated in judicial or quasi-judicial processes. In Australia, a sailor named Anita Van der Meer complained to the Australian Human Rights and Equal Opportunities Commission after she was threatened with discharge for her involvement in a same-sex relationship. The Australian Cabinet lifted the ban in 1992. In Canada, Michelle Douglas was dishonourably discharged for being a lesbian. Although she reached a settlement in her court case, the litigation prompted the military to review and change its policy. In the United States, legislation was enacted to repeal the law Don’t Ask Don’t Tell even as an appellate court was reviewing a trial court’s decision striking down the law. More than 13,000 service men and women had been discharged since the law was enacted in 1993.
The European Court overturned the British ban on service by gay individuals in the armed forces in two decisions handed down in 1999. The applicants had alleged that the investigations into their homosexuality and their subsequent discharges violated their right to respect for their private lives under Article 8 of the Convention. The Court found interference in the applicants’ private lives had occurred but concluded it was in pursuit of legitimate aims, namely “the interests of national security” and “the prevention of disorder.” Nevertheless, the Court found that such interference was not necessary in a democratic society. Under European Court jurisprudence, the test of “necessary in a democratic society” meant that the interference must respond to a “pressing social need” and be “proportionate to the legitimate aim pursued”. Because the restriction concerned “a most intimate part of an individual’s private life”, only “particularly serious reasons” could serve as justifications. The Court noted that the primary justification for retaining the policy was the “negative attitudes of heterosexual personnel towards those of homosexual orientation”. The Court observed that these attitudes, even if sincerely felt by those who expressed them, ranged from stereotypical expressions of hostility to those of homosexual orientation, to vague expressions of unease about the presence of homosexual colleagues. To the extent that they represent a predisposed bias on the part of a heterosexual majority against a homosexual minority, these negative attitudes cannot, of themselves, be considered by the Court to amount to sufficient justification for the interferences with the applicants’ rights, any more than similar negative attitudes towards those of a different race, origin or colour.
Finding no “concrete evidence to substantiate the alleged damage to morale and fighting power”, the European Court held that the government had not offered “convincing and weighty reasons to justify the policy”.
In this chapter, the judicial approaches are quite varied. The test in the United States for a law that infringes upon a fundamental right is similar to the one adopted by the European Court. Such a law must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary. In Log Cabin Republicans, the government argued that the purpose of Don’t Ask Don’t Tell was to advance the important governmental interests in military readiness and troop cohesion. In an earlier and unrelated challenge to the same law, the Court of Appeals for the 9th Circuit had accepted that these were important governmental interests. The Court in Log Cabin Republicans limited its analysis to the second and third prongs of the test. It found that the government had failed to meet its responsibility to establish either that the law furthered these interests or was necessary. On the contrary, the plaintiffs introduced significant evidence establishing that Don’t Ask Don’t Tell adversely affected the government’s interests in military readiness and troop cohesion. Through witness testimony and documents, the plaintiffs showed that the law caused the discharge of qualified and needed service members; and that the military had delayed the discharge of gay service members if they were on overseas deployments during wartime, thereby indicating that the military itself did not consider discharge of lesbian and gay personnel to be necessary. Log Cabin Republicans was argued and won on the strength of the evidentiary record.
The plaintiffs in Log Cabin Republicans did not raise equal protection arguments. The earlier case of Witt v. Rumsfield had dismissed Witt’s equal protection challenge to Don’t Ask Don’t Tell because a majority of the Supreme Court in Lawrence v. Texas had struck down Texas’s sodomy law on privacy and liberty grounds only.
In South Korea, the Constitutional Court by a slim majority upheld the constitutionality of Article 92 of the Military Penal Code in the case of 2008 Hun-Ga21. The government had successfully argued that the law was necessary to preserve troop morale and unit cohesion. The Court considered this was a legitimate objective and that the law was a proportional means of reaching this objective. Although only same-sex sexual conduct was prohibited, the Court reasoned that sexual orientation was not protected under the Constitution and therefore this did not amount to discrimination. Four justices dissented on the ground that the law was unconstitutionally vague because it did not distinguish between consensual and non-consensual sex.
In the Colombian and Peruvian cases, government defence of the laws at issue was somewhat minimal. In the Colombian case the Prosecutor General intervened on the side of the plaintiff challenging the law. The Colombian Court read down the statute to prohibit all sexual acts, whether homosexual or heterosexual, carried out in public or on duty or within military premises. In the Peruvian case, Sentencia 0023-2003-AI-TC, the Ombudsman’s Office filed suit against the law. The reasoning in both cases emphasised the requirements of formal equality. The laws at issue were struck down in part because they prohibited only sexual conduct between same-sex partners.
Although the Constitutional Tribunal did not specifically state where or how sexual orientation was located in Article 2(2) of the Constitution of Peru, it did find a difference in treatment based on sexual orientation to be unconstitutional. The Tribunal stated: “If what is illegal is the practice of a dishonest conduct, there is no an objective nor a reasonable ground for only punishing the acts between persons of the same sex”. This reasoning was further developed in Sentencia 00926-2007-AA, where the Constitutional Tribunal stated that discriminatory treatment based on sexual orientation was contrary to the Constitution.
- Nathaniel Frank, Gays in Foreign Militaries 2010: A Global Primer (Palm Center, University of California at Santa Barbara February 2010), Appendix.↵
- The Don’t Ask Don’t Tell Repeal Act was approved by both houses of the US Congress in December 2010. Full repeal is supposed to occur within 60 days of certification by the Secretary of Defense and the Chairman of the Joint Chiefs of Staff.↵
- ‘US Senate lifts don’t ask don’t tell gay soldier ban’ BBC News (18 December 2010).↵
- European Court of Human Rights, Judgment of 27 September 1999, Lustig-Prean and Beckett v. United Kingdom, Applications No. 31417/96 and 32377/9; European Court of Human Rights, Judgment of 27 September 1999, Smith and Grady v. United Kingdom, Applications No. 33985/96 and 33986/96.↵
- Lustig-Prean, para. 67.↵
- Lustig-Prean, para. 80.↵
- Lustig-Prean, para. 82.↵
- Lustig-Prean, para. 89.↵
- Lustig-Prean, para. 90.↵
- Lustig-Prean, paras. 92 and 98.↵
- Witt v. Rumsfield, 527 F.3d 806, US Court of Appeals for the 9th Circuit, 2008.↵