The New York Times

Tuesday, September 28, 1999

European Court Tells British to Let Gay Soldiers Serve

By SARAH LYALL

LONDON -- The European Court of Human Rights declared Monday that Britain's longstanding ban on homosexuals in the military was a violation of the basic human right to privacy.

The unanimous decision by the European court, based in Strasbourg, France, means that Britain will almost certainly be forced to allow openly gay men and women into the military for the first time, human-rights lawyers said.

"Politically the government, which has made human rights part of its manifesto, cannot be seen to be ignoring the policy of the European court," said Di Luping, a lawyer for Liberty, a human-rights organization. Ms. Luping represented two of the four people who took their case to the European court after they were discharged from the military when their homosexuality was discovered.

The Defense Ministry, which responded to the legalization of homosexuality in Britain some 30 years ago by forbidding gay men and lesbians to serve in the armed forces, said that as a result of the ruling, it would halt pending disciplinary cases involving military personnel suspected of being gay. But beyond that, it said the government would have to review the decision and decide how to proceed.

"This government, like all governments, has to accept the rulings of the European Court of Human Rights," said the defense secretary, Lord Robertson. "The detail of this complex judgment and the practical implications are presently being studied. We will be looking at it quickly, thoroughly, and making our recommendation speedily."

Since the ban on homosexuals in the military was put into effect, at least 600 gay men and lesbians, by official count -- but possibly thousands more -- have been discharged unfairly because of their sexuality, said Steve Johnston, chairman of Rank Outsiders, a support group for gay members of the armed forces.

"People who serve or who elect to serve their country," he said, "do so with the commitment that the ultimate sacrifice might be to give up their lives for their country. They don't join the navy or the army or the air force to find same-sex partners."

The case before the European court, which serves as a court of last resort for Europeans, much as the Supreme Court does for Americans, concerned four people: Ms. Luping's clients and two others. All were dismissed from the military in the mid-1990s after their homosexuality was disclosed.

Graeme Grady, an intelligence officer with the Royal Air Force who was married and the father of two children, was discovered going to a counseling group for gay married men. Jeanette Smith, an air force nurse, was dismissed after her relationship with a civilian woman was revealed by an anonymous tip. Duncan Lustig-Prean was a supply officer on a naval ship whose superior officer received an anonymous letter alleging that he was gay. And John Beckett, a weapons engineer mechanic in the navy, confessed his homosexuality to the chaplain on his ship.

Armed with glowing reports from superior officers about their conduct and professionalism, the four appealed the dismissals to the British courts, but their applications were rejected. In 1996, they took their cases to the European court.

Defending its policy in Strasbourg, the British government argued that the presence of gay men and lesbians in the military depressed morale, incited anti-gay prejudice and disrupted people's ability to do their jobs. It pointed to a survey it conducted in 1996 in which a preponderance of members of the armed services polled said they did not want to serve with homosexuals.

The issue has been a hotly contested one in Britain, and the Defense Ministry has always made clear that it believes, as its guidelines say, that homosexuality is incompatible with military service.

"This is not only because of the close physical conditions in which personnel often have to live and work, but also because homosexual behavior can cause offense, polarize relationships, induce ill-discipline and as a consequence, damage morale and unit effectiveness," the guidelines say.

But the court, composed of judges from Britain, Cyprus, France, Lithuania, Austria, Norway and Albania, was not convinced. In a 7-0 judgment, it ruled that the Defense Ministry had violated Article 8 of the European Convention on Human Rights, which says that "everyone has the right to respect for his private and family life, his home and his correspondence."

Britain has no American-style bill of rights or written constitution, but along with 40 other countries, it has signed the European Convention on Human Rights, which obliges it to abide by the court's rulings, even to the extent of changing its laws if necessary. Previous cases have forced Britain to end corporal punishment in state schools and to give greater rights to prisoners and people suspected of terrorism.

In this case the European court found the investigations of the applicants' sexuality, which included searches of their possessions and detailed interrogations of them and others by military police officers about specific and highly personal aspects of their sexual practices, to be particularly intrusive. The court said this "constituted a direct interference with the applicants' right to respect their private lives."

Nor was the court swayed by the Defense Ministry's contention that members of the armed forces do not want to serve with homosexuals.

"These negative attitudes cannot, of themselves, be considered by the court to amount to sufficient justification for the interference with the applicants' rights outlined above, any more than similar negative attitudes toward those of a different race, origin or color," the ruling said.

The four people whose cases were the subject of Monday's ruling said they were gratified by the result, and hope the Defense Ministry will lift the ban on homosexuals as soon as possible.

"I'm absolutely thrilled with the decision," Ms. Smith told Sky News, comparing the effort to keep gay men and lesbians out of the military to earlier efforts to ban people from other groups. "They weren't happy when women joined the forces, or ethnic minorities and blacks and different religious groups. I can't see why we can't be accepted in, either."