X. UNIT COHESION: A RATIONALE IN SEARCH OF EVIDENCE

The "unit cohesion" rationale for "don't ask, don't tell" is profoundly flawed. As Dr. Lawrence J. Korb, the Assistant Secretary of Defense under President Ronald Reagan, pointed out in 1995:

There are at least three ... major problems with the "unit cohesion" argument. First, it represents a severe and somewhat defeatist underestimation of the ability of today's servicemembers to keep their focus on professional military concerns; it also represents a uniquely curious (and, I believe, incorrect) admission that our soldiers and sailors could not effectively follow orders and do their jobs if we lifted the ban. Second, kowtowing to the prejudices of some by excluding others has never been an acceptable policy rationale, either in the military or in our society at large. And third, in the several units where acknowledged homosexuals are serving today (usually, by court order), there are no signs of unit disintegration or bad morale.²⁴⁹

The Pentagon has never produced empirical support for its insistence that permitting open or sexually active gay men and lesbians to serve in the military would undermine "unit cohesion." Moreover, the military experiences of other nations disprove the premise that open homosexuals impair military performance.

Gay men and lesbians who are open about their sexual orientation are allowed to serve in the armed forces of at least twenty-four countries, including U.S. allies such as Australia, Belgium, Canada, France, Germany, Israel, the Netherlands, Spain, and the United Kingdom.²⁵⁰ Among NATO countries, only Turkey and Greece have bans on gays and lesbians in the military. In Hungary and Poland, gay men and lesbians may only be discharged or denied promotions under limited circumstances. The rest of NATO's member states either allow gay men and lesbians to serve openly, supported by strict anti-discrimination policies, or have no official policy.²⁵¹

In 1993, the U.S. General Accounting Office (GAO) surveyed twenty-five countries with active armed forces of over 50,000 members and examined in detail four countries whose experiences were deemed to be most relevant to the United States: Canada, Israel, Sweden, and Germany. According to the GAO, military officials from Canada, Israel, and Sweden said that the inclusion of homosexuals in their militaries had not adversely affected unit readiness, effectiveness, cohesion, or morale.²⁵² Canada maintained restrictions on gay men and lesbians in its military until 1992. Canadian Department of National Defence officials told the GAO that predictions of mass resignations, recruitment difficulties, and problems with morale and unit cohesiveness did not materialize when the country lifted the ban.²⁵³ In Germany, there was no specific ban on gays serving in the military, but there was a "suitability" requirement that had been used to exclude gay men and lesbians from leadership positions; the policy allowed flexibility as to whether discharge, discipline, or no action is required when sexual orientation is discovered. German officials interviewed by the GAO study called the subject of gays in the military a "non-issue."²⁵⁴ In 2001, deciding that servicemember had a right to a "private life," Germany lifted all restrictions on military service by gay men and lesbians, and permitted gays and lesbians to serve under the same rules as heterosexuals.²⁵⁵

Under contract with the Department of Defense, RAND Corporation's National Defense Research Institute reviewed seven countries representing a range of policies regarding gay and lesbian servicemembers. It found that tolerance for gays and lesbians can occur in the absence of full acceptance: "In none of these countries are heterosexuals fully comfortable living closely with homosexuals, but in none of these countries were there significant disciplinary problems caused by homosexuals within the ranks."²⁵⁶ Referring to Canada, the Netherlands, and Norway where policies against gay and lesbian servicemembers were changed, the RAND report noted that "for all three countries, strong support from the highest levels of leadership, including the Minister of Defense and the highest ranks of military officers, communicated the acceptability of the new policy and the resolve of the military to accomplish the change."²⁵⁷

RAND concluded that restrictions on gay men and lesbians serving in the military were inconsistent with its findings that homosexuality did not affect fitness to serve. It recommended that standards regarding professional conduct should be "neutral" with regard to sexual orientation and emphasized the need for clear standards of sexual conduct that would be fairly and strictly enforced against all servicemembers, whatever their sexual orientation. RAND also recommended that the Manual for Courts-Martial be revised so that only "non-consenting" sexual activity or sexual acts with minors would be prosecuted.²⁵⁸

After reviewing government and military documents and interviewing servicemembers and military leaders, the Center for the Study of Sexual Minorities in the Military (CSSMM) at the University of California, Santa Barbara, concluded in 2000 that the integration of gay and lesbian servicemembers had not led to disruptions nor undermined unit cohesion in Canada, the United Kingdom, Israel, or Australia. In Canada, the CSSMM reviewed a 1998 harassment study conducted by the Canadian Forces which showed that, despite the fears of an increase in anti-gay violence or harassment following the lifting of the ban on gay and lesbian servicemembers in 1992, no such increase had occurred. Canadian servicemembers reported harassment based on sexual orientation as one of the least common forms of harassment.²⁵⁹ There were no reports of any negative change in military performance, and recruiters told researchers that they believed the end of the ban had helped recruitment efforts.²⁶⁰ Gay and lesbian servicemembers told the CSSMM researchers that they believed they were doing a better job without the anxiety and fear relating to "being found out" under the ban.²⁶¹

With regard to Israel-where gay men and lesbians have been allowed to serve in the military without any restrictions since 1993-the CSSMM concluded that: "there is no evidence that the long-standing inclusion of homosexuals in the IDF [Israel Defense Forces] has harmed operational effectiveness, combat readiness, unit cohesion, or morale in the Israeli military. In a security-conscious nation, this is simply not a concern among military personnel or the public more generally."²⁶²

In a September 2000 study on Australia, the CSSMM found that the 1992 lifting of the ban on openly gay and lesbian soldiers did not lead to any "identifiable negative effects on troop morale, combat effectiveness, recruitment and retention, or other measures of military performance."²⁶³ Despite predictions of widespread disruption if the ban was lifted, one Navy commodore stated, "There was no great peak ... where people walked out, and there was no great dip in recruiting. It really was a non-event."²⁶⁴ Self-identified gay soldiers, officers, and commanders described good working relationships in an environment that emphasizes capable and competent job performance under uniform rules of conduct for all personnel.

Reviewing the first ten months after the end of the ban on gays and lesbians serving in the British Armed Forces, the CSSMM found that there had been no major problems associated with the policy change.²⁶⁵ The U.K. Ministry of Defense noted a "marked lack of reaction" and hailed the new policy as a "solid achievement."²⁶⁶ According to the CSSMM, there were no mass resignations, no major reports of gay-bashing or harassment, and no perceived effect on morale, unit cohesion, or operational effectiveness.²⁶⁷

In addition to reviewing the experience of foreign militaries, RAND also assessed the experience of U.S. municipal police and fire departments.²⁶⁸ Like the military, such agencies are hierarchical, involve potentially life-threatening situations, rely on a high degree of teamwork, and members share locker rooms and living space with minimum privacy. RAND concluded that few problems arose from permitting acknowledged homosexuals to serve in these agencies.²⁶⁹ For example, its researchers found "[n]o case of a homosexual male sexually harassing a heterosexual male ...; indeed, the question itself sometimes evoked disbelief among those who had actually worked closely with homosexuals that such an event might occur."²⁷⁰ RAND researchers encountered occasional reports by commanders that lesbians had stared at heterosexual women in locker rooms or made unwelcome advances, but "these were said to be rare, far more rare than incidents of heterosexual men harassing women."²⁷¹ Similarly, public displays of affection among gays and lesbians were unusual, and "[gay and lesbian] officers overwhelmingly conformed to established conventions regarding professionalism while in uniform."²⁷²

The U.S. Military and Racial Integration
Gays and lesbians are not the first group to have been told by the U.S. military that their presence would threaten combat readiness. Similar arguments were made to justify racial segregation of the armed forces. During the administration of Franklin D. Roosevelt, at a time when civilian life was racially segregated by law a military official explained to the Conference of Negro Editors and Publishers: "The Army is not a sociological laboratory ... Experiments to meet the wishes and demands of the champions of every race and creed for the solution of their problems are a danger to the efficiency, discipline and morale and would result in an ultimate defeat."²⁷³ The military working group studying the proposed racial integration of the Navy in the 1940s concluded:

Enlistment for general service implies that the individual may be sent anywhere-to any ship or station where he is needed. Men on board ship live in particularly close association; in their messes, one man sits beside another; their hammocks or bunks are close together; in their common tasks they work side by side; and in particular tasks such as those of a gun's crew, they form a closely knit, highly coordinated team. How many white men would choose, of their own accord that their closest associates in sleeping quarters, at mess, and in a gun's crew should be of another race? How many would accept such conditions, if required to do so, without resentment and just as a matter of course? The general Board believes that the answer is "Few, if any," and further believes that if the issue were forced, there would be a lowering of contentment, teamwork and discipline in the service.²⁷⁴

Despite military opposition, President Harry S. Truman yielded to civil rights groups' pressure and integrated the armed forces by presidential order in 1948.²⁷⁵ The dire predictions about integration's negative effects on the military never materialized. In fact, the military is credited with doing far more than many sectors of civilian society to combat racial intolerance. The military is today one of the most integrated institutions in American life and one of the few places where people of color commonly supervise whites.

One factor underlying the success of racial integration is a vast equal opportunity apparatus, headquartered at the Defense Equal Opportunity Management Institute in Florida, where since 1971 over twenty-thousand members of the armed forces, primarily service leaders and command staff, have received 15-week training courses to become equal opportunity representatives and to combat prejudice based on race, sex, or religion.²⁷⁶ Unfortunately, the Equal Opportunity offices, which deal with sexual and racial discrimination and other issues in the military, do not address anti-gay prejudice and harassment. According to the Office of the Deputy Under Secretary of Defense for Equal Opportunity, harassment based on sexual orientation is "not considered a protected category."²⁷⁷ One senior Army official based at the Pentagon was quoted in a press report as stating, "We do not want our equal opportunity advisers to become associated with the homosexuality issue,".²⁷⁸ Describing the difference between racial and homosexual issues, the same senior Army official explained, "We are trying to keep the two very separate. When we say we want to celebrate diversity, that we want to ensure everyone gets a fair chance at advancement, we cannot apply that same spirit to people whose sexual conduct violates the law."²⁷⁹

²⁴⁹ Thomasson v. Perry, 80 F.3d 915, 951-952 (4^th Cir. 1996.).

²⁵⁰ General Accounting Office, Homosexuals in the Military: Policies and Practices of Foreign Countries, (GAO/NSIAD-93-215), June 1993, p. 5; RAND Corporation, National Defense Research Institute, Sexual Orientation and U.S. Military Personnel Policy: Options and Assessment, MR-323-OSD, 1993, pp. 65-105. The Center for the Study of Sexual Minorities in the Military (CSSMM) an independent research project, reports that open homosexuals can serve in the armed forces of Australia, Austria, Belgium, Canada, Czech Republic, Denmark, Estonia, Finland, France, Germany, Ireland, Israel, Italy, Lithuania, Luxembourg, Netherlands, New Zealand, Norway, Slovenia, South Africa, Spain, Sweden, Switzerland, and the United Kingdom. Details provided to Human Rights Watch by Aaron Belkin, Director, CSSMM, by electronic mail, January 10, 2003. The International Lesbian and Gay Alliance identifies a somewhat different list of "countries that do not refuse lesbians and gay men the right to serve in the armed forces:" Australia, Austria, Bahamas, Belgium, Canada, Czech Republic, Denmark, Estonia, Finland, France, Ireland, Israel, Italy, Lithuania, Netherlands, New Zealand, Norway, Slovenia, South Africa, Spain, Sweden, Switzerland, and the United Kingdom. See, www.ilga.org/Information/legal_survey/Summary%20information/armed_forces.htm. Germany lifted all restrictions on homosexuals in its armed forces in January, 2001.

²⁵¹ General Accounting Office, Homosexuals in the Military, June 1993. The United Kingdom rescinded its ban on homosexual servicemembers following the Lustig-Prean decision.

²⁵² Ibid., p. 4.

²⁵³ Ibid., p. 10.

²⁵⁴ General Accounting Office, Homosexuals in the Military, June 1993.

²⁵⁵ Human Rights Watch telephone interview with Lt. Col. Carl M. Wilke, ZentrumInnere Fuehring, German Armed Forces, January 6, 2003. The Zentrum Innere Fuehring is a policy-making office within the German Armed Forces.

²⁵⁶ RAND Corporation, Sexual Orientation, 1993, p. 103.

²⁵⁷ Ibid., pp. 104-5.

²⁵⁸ Ibid., pp. xxvi-xxvii and pp. 36-38.

²⁵⁹ Major J.E. Adams-Roy, Harassment in the Canadian Forces: Results of the 1998 Survey, (Ottawa: National Defense Headquarters, 1999); Center for the Study of Sexual Minorities in the Military, Effects of the 1992 Lifting of Restrictions on Gay and Lesbian Service in the Canadian Forces: Appraising the Evidence (University of California, Santa Barbara, April 2000).

²⁶⁰ Ibid.

²⁶¹ Ibid.

²⁶² Center for the Study of Sexual Minorities in the Military, Effects of Lifting of Restrictions on Gay and Lesbian Service in the Israeli Forces: Appraising the Evidence (University of California at Santa Barbara, California, June 2000.)

²⁶³ Center for the Study of Sexual Minorities in the Military, Effects of Including Gay and Lesbian Soldiers in the Australian Defense Forces: Appraising the Evidence (University of California at Santa Barbara, California, September 19, 2000,) Executive Summary.

²⁶⁴ Ibid.

²⁶⁵ Center for the Study of Sexual Minorities in the Military, Effects of Including Gay and Lesbian Soldiers in the British Armed Forces: Appraising the Evidence (University of California at Santa Barbara, California, November 2000.)

²⁶⁶ Ibid.

²⁶⁷ Ibid., Executive Summary.

²⁶⁸ RAND Corporation, Sexual Orientation, 1993, pp. 106-157. The cities studied-Chicago, Houston, Los Angeles, New York City, San Diego and Seattle-were chosen as large cities representative of different geographic regions.

²⁶⁹ Ibid. The study does note, however, that many homosexuals choose to keep their sexual orientation private at work.

²⁷⁰ Ibid., p. 129.

²⁷¹ Ibid.

²⁷² Ibid.

²⁷³ Quoted in Randy Shilts, Conduct Unbecoming, p. 188.

²⁷⁴ Quoted in Thomasson v. Perry, 80 F.3d 915, 952 (4^th Cir. 1996) (Hall, J., dissenting). See also footnote 238.

²⁷⁵ _President Harry S. Truman, Executive Order No., 9981, July 6, 1948: "There shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin."

²⁷⁶ R. Norman Moody, "Minorities face setbacks in the military," Florida Today, April 3, 2002. See also https://www.patrick.af.mil/deomi/deomi.htm.

²⁷⁷ Human Rights Watch telephone interview with Col. Beverly Wright, Office of the Deputy Under Secretary of Defense for Equal Opportunity, U.S. Department of Defense, January 2, 2003. Colonel Wright stated that training at DEOMI does not address anti-gay bias or harassment in the military.

²⁷⁸ Roberto Suro, "Military's differing lesson plans reflect unease on gay policy" Washington Post, March 4, 2000.

²⁷⁹ Ibid.