January 6, 2003

I.Summary

The U.S. military's efforts in Operation Enduring Freedom prompted President George W. Bush to express his pride in its servicemembers and to proclaim the United States had "the finest military ever assembled."  But thousands of servicemembers are at risk of discharge, no matter how well or bravely they serve their country, merely because of their sexual orientation.  Instead of being a model for tolerance, the U.S. military remains a bastion of officially sanctioned discrimination against homosexuals.

The U.S. prohibited homosexuals from serving in the military for most of the twentieth century.  In 1993, Congress passed new legislation replacing that prohibition with the "don't ask, don't tell" policy, a compromise between those, led by President Bill Clinton, who believed the prohibition was discriminatory and wrong, and those, including military leaders, determined to maintain the prohibition.  Under the new policy, gay men, lesbians, and bisexuals would be able to serve as long as they kept their sexual orientation a secret and did not engage in homosexual conduct, including off base.  In return for agreeing to remain silent and celibate, gay men, lesbians, and bisexuals were to be protected against unwarranted intrusions into their private lives.  Private consensual sex by a servicemember with someone of the same sex remained a criminal offence under military law.

Although the "don't ask, don't tell" policy was intended to allow gay, lesbian, or bisexual servicemembers to remain in the military, discharges have steadily increased since the policy's adoption.  According to the Servicemembers Legal Defense Network (SLDN), from 1994 through the end of 2001, more than 7,800 men and women were discharged from the military because of their actual or perceived homosexuality.  In 2001 alone, a record 1,256 were discharged, a figure nearly double the homosexual separation rate of 730 in 1992, prior to "don't ask, don't tell." These thousands of servicemembers were not separated from the military because of a lack of skill, courage, commitment, or ability to work with fellow servicemembers.  They were required to leave the armed forces because of a policy that reflects the bias of a heterosexual majority against a homosexual minority.

The "don't ask" dimension of the policy was supposed to benefit homosexuals by ending unwarranted official efforts to uncover their sexual orientation.  Human Rights Watch has not been able to measure the extent to which such inquiries have, in fact, diminished, yet servicemembers continue to report hundreds of instances each year in which the letter and the spirit of the policy have been violated.   Even in the absence of "statements" of homosexuality or of credible evidence of homosexual conduct, officials have inappropriately delved into the sexual orientation of men and women, eventually prompting their discharge.  Gay and lesbian servicemembers believe violations of the "don't ask" component of the policy are committed with impunity. 

By establishing special rules for gays and lesbians that do not apply to heterosexuals, the "don't ask, don't tell" policy codified anti-homosexual discrimination.  By stigmatizing homosexuality, the policy has also perpetuated prejudice against and invited harassment of gay servicemembers.  In theory, all servicemembers are to be treated with dignity and respect regardless of sexual orientation.  In practice, gay servicemembers endure anti-gay remarks, name-calling, threats, and even physical attacks.  In the case of Private First Class Barry Winchell, homophobia led to murder:  a fellow soldier wielding a baseball bat beat Winchell to death in 1999.  Female servicemembers are subjected to an additional form of harassment-"lesbian-baiting"-whereby male servicemembers label as lesbians women who rebuff their sexual advances or who do not act "feminine" enough, a label that threatens their careers.

U.S. officials are well aware of the harassment that has flourished under the policy.  Eighty percent of servicemembers surveyed by the Department of Defense in 2000 reported they had heard offensive speech, derogatory names, jokes, or negative remarks about homosexuals during the previous year.  Eighty-five percent believed such comments were tolerated to some extent.  Thirty-seven percent reported they had witnessed or experienced an incident they considered anti-gay harassment.

Servicemembers victimized by anti-gay abuse face a cruel dilemma.  They can choose either to suffer in silence or to report the abuse.  If they choose the latter course of action they risk disclosing their sexual orientation in the course of describing the incident or having it disclosed by others-and disclosure can lead to their discharge.  Military officials have tried to reassure servicemembers who complain of harassment that they will not be investigated, but such assurances are not convincing since the policy requires the separation of any servicemember who "tells"-even if the statement was made unintentionally.  Some cases in which homosexuals have reported harassment have led to extensive investigations into their private lives.

            Anti-gay harassment and hostile treatment of servicemembers is committed with near total impunity, as are violations of the military rules against unauthorized or unduly intrusive investigations into a servicemember's sexual orientation. According to the Servicemembers Legal Defense Network, not one servicemember was held officially accountable for asking, pursuing, or harassing during the policy's first six years; in 2000, three officers were punished for their involvement in publicized incidents.

The military's support system to help servicemembers and their families, including base or ship chaplains, social workers, and physicians, offers false promises to gay and lesbian servicemembers.  Instead of respecting confidential communications, some chaplains and health professionals, including therapists, have turned in homosexual and bisexual servicemembers, often believing that it was their duty to report them.  Chaplains have  berated gay servicemembers, telling them that they were sick or going to hell. 

Supporters of "don't ask, don't tell"-and of the blanket prohibition on homosexual service that preceded it-claim "unit cohesion" and military morale will suffer if known homosexuals are allowed to serve side-by-side and share close quarters with heterosexuals.  Decades ago, the U.S. armed forces offered the same "unit cohesion" argument to oppose racially integrating military units.  In 1948, President Truman rejected the argument and ordered the racial integration of the armed forces.  But while U.S. military policy has rejected racial prejudice and discrimination, it continues to endorse discrimination based on anti-gay prejudice. 

Anti-gay prejudice has led supporters of the military's policies on homosexuality to overlook the utter lack of empirical evidence to support the "unit cohesion" claim.  In the last decade, a number of countries, including the United Kingdom, Germany, Canada, and Israel, have eliminated restrictions on service by open homosexuals without impairing their armed forces' effectiveness.  Indeed, most members of NATO now permit open homosexuals to serve in their militaries.

Not only is there no evidence that the "don't ask, don't tell" policy is required to further the military's mission, there is considerable reason to believe it is counter-productive.  As noted above, the policy has resulted in the loss of thousands of capable, experienced personnel.  At a time when U.S. forces are engaged in armed conflict and multiple peacekeeping missions, the average discharge of more than three servicemembers a day, many with exemplary records, simply for failing to keep secret that they are homosexual or bisexual, or for engaging in private, consensual sexual conduct, appears antithetical to military objectives.

            The policy is also expensive.  The military has had to spend an estimated $218 million to recruit and train replacements for those removed as homosexuals.  But the real cost of the policy is to be measured in the misery it has created in the lives of so many men and women whose wish was to serve their country.

"Don't ask, don't tell" is the only law in the United States today that authorizes the firing of a person from his or her job solely for acknowledging a homosexual or bisexual sexual orientation.  Within certain military restrictions, e.g., the prohibition on fraternization between officers and enlisted personnel, heterosexual servicemembers are able to go on dates, hold hands and kiss publicly, have sexual relations, and talk with their servicemember friends about their personal lives.  Homosexuals cannot.

Sexual orientation-be it heterosexual, homosexual or bisexual-defines a profound and deeply-rooted aspect of each individual's personality and humanity.  It reflects needs and desires that permeate one's sense of self in ways both conscious and unconscious, and that are experienced inwardly as well as reflected outwardly through acts, gestures, and words.  It is as intrinsic to the constitution and growth of a person as race, ethnicity, gender, or religious conviction. As with these other constitutive aspects of self, international human rights law protects individuals from prejudice-based discrimination on the basis of sexual orientation.  The United Nations Human Rights Committee has held that sexual orientation is not a valid basis for distinguishing who may enjoy rights specified in the International Covenant on Civil and Political Rights, to which the United States is a party.  The right to privacy is affirmed in the covenant-a right that includes sexual intimacy.  Sodomy laws prohibiting consensual sex between adults violate that right. 

The European Court of Human Rights, reviewing a prohibition against homosexuals in the United Kingdom military, concluded that it constituted prohibited discrimination with regard to intimate associationsprotected by the right to privacy.  Confronting the United Kingdom's contention that homosexuality was incompatible with military cohesion-the same argument used to support "don't ask, don't tell"-the European Court of Human Rights pointed out that discrimination against a disfavored minority to accommodate the prejudices of a majority violated the rights of homosexual servicemembers.

Military life is different from civilian life, and is characterized by laws, rules, and traditions that restrict personal behavior.  While many of the strictures of military life are reasonable or necessary in light of the military's unique mission, the codification of anti-gay prejudice is not.  Unfortunately, U.S. courts have failed to look closely at "don't ask, don't tell". Reluctant to intervene in matters of military judgment, the courts have left homosexual servicemen and women vulnerable to continued discrimination, harassment, and discharge. 

As a presidential candidate, George W. Bush stated that he favored continuing the "don't ask, don't tell" policy.  In August, 2001, Pentagon officials told Human Rights Watch that there were no plans to change the policy.  When the U.S. military was deployed to Afghanistan in response to the September 11, 2001 attacks on New York City and the Pentagon, the "don't ask, don't tell" policy remained in place.  On September 14, 2001, President Bush issued Executive Order 13223, authorizing each service branch to issue "stop-loss" orders-or suspensions of administrative discharges-for a set period of time while military  actions in response to the September 11 attacks were planned and carried out.  Each branch of the armed services issued stop-loss orders, but they did not apply to servicemembers facing discharge under the "don't ask, don't tell" policy.  During Operation Desert Storm in 1991, however, President George Bush authorized stop loss orders that did apply to homosexuals; discharge proceedings against homosexuals were suspended until they returned home from combat.

           

As a U.S. military attack on Iraq is contemplated, the discrimination against homosexual servicemembers remains; no steps have been taken to end a policy that results in the loss of more than a thousand trained and dedicated servicemembers each year.  The United States may wage war against those who disavow human rights, but it remains adamant against recognizing the fundamental rights of the homosexuals who volunteer to fight, and die, for their country.