United States: The legislation regarding homosexuality and the treatment of homosexuals in the military; state protection available

Legislation regarding homosexuality in the military

Subsection 654 of section 10 of the United States Code, covering the Policy Concerning Homosexuality in the Armed Forces, also known as the "Don't Ask, Don't Tell" policy (DADT) (US 16 Mar. 2000, i; Belkin 27 July 2009; SLDN n.d.b), provides for the following:

A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations:

1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that -

A) such conduct is a departure from the member's usual and customary behavior;

B) such conduct, under all the circumstances, is unlikely to recur;

C) such conduct was not accomplished by use of force, coercion, or intimidation;

D) under the particular circumstances of the case, the member's continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and

E) the member does not have a propensity or intent to engage in homosexual acts.

2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding, made and approved in accordance with procedures set forth in the regulations, that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.

3) That the member has married or attempted to marry a person known to be of the same biological sex (US 5 Jan. 2009, Sec. 10, paragr. 654(b)).

That same policy defines a "homosexual act" as:

A) any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires; and

B) any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in an act described in subparagraph (A). (ibid., Sec. 10, subparagr. 654(f)(3)).

Moreover, Instruction No. 1332.14 of the United States (US) Department of Defense regarding the termination of employment for army personnel defines the "propensity to engage in homosexual acts" as follows:

"Propensity to engage in homosexual acts" means more than an abstract preference or desire to engage in homosexual acts; it indicates a likelihood that a person engages in or will engage in homosexual acts (US 28 Aug. 2008, 59).

However, the DADT policy also sets out the following provisions:

Nothing in subsection (b) shall be construed to require that a member of the armed forces be processed for separation from the armed forces when a determination is made in accordance with regulations prescribed by the Secretary of Defense that -

1) the member engaged in conduct or made statements for the purpose of avoiding or terminating military service; and

2) separation of the member would not be in the best interest of the armed forces (US 5 Jan. 2009, Sec. 10, paragr. 654(e)).

According to a document drafted by two members of the Military Law Task Force (MLTF) of the National Lawyer Guild, an organization made up of lawyers, law students and legal workers, the policy regarding homosexuality in the armed forces is intended "to exclude people from the military for homosexual conduct" rather than for their sexual orientation (Collier and Gilberd Oct. 2005, 3). According to Instruction No. 1304.26 of the Department of Defense, which establishes hiring standards:

A person's sexual orientation is considered a personal and private matter, and is not a bar to service entry or continued service unless manifested by homosexual conduct in the manner described in [the Policy concerning homosexuality in the armed forces of the United State Code]. Applicants for enlistment, appointment, or induction shall not be asked or required to reveal their sexual orientation nor shall they be asked to reveal whether they have engaged in homosexual conduct … (US 20 Sept. 2005, 9).

However, according to members of the MLTF, "the policy has so significantly expanded the definition of homosexual conduct that the distinction between conduct and orientation is virtually eliminated" (Collier and Gilberd Oct. 2005, 3).

According to data gathered in a report published by the Congressional Research Service (CRS), between 1993, when the DADT policy came into effect (US 22 July 2009, summary), and 2001, the number of people who were discharged from the military under the policy increased, reaching 1,227 people in 2001; the trend generally decreased in the following years; in 2008, 634 people were discharged from the military under the provisions of the policy (ibid., 9-10). Instruction No. 5505.8 of the Department of Defense stipulates that "[i]t is [Department of Defense] policy that the [Defense Criminal Investigative Organizations] or other [Department of Defense] law enforcement organizations shall not conduct an investigation solely to determine a Service member's sexual orientation" (US 24 Jan. 2005, 2). According to the report drafted by members of the MLTF, "[i]n practice, formal investigations involving statements about sexual orientation are rare, but investigations of alleged homosexual acts are still a problem" (Collier and Gilberd Oct. 2005, 8).

Several media sources indicate that President Obama has announced his intention to repeal the DADT policy (Pink News 1 Feb. 2010; RFE/RL 3 Feb. 2010; Keen News Service 3 Feb. 2010). In February 2010, the Department of Defense conducted a study to determine how the DADT policy could be repealed in practice (RFE/RL 3 Feb. 2010; CNN 2 Feb. 2010; Pink News 2 Feb. 2010). Defense Secretary Robert Gates announced that the Department of Defense had 45 days to present recommendations on how the law, in its current form, could be enforced "in a more humane and fair manner" (Keen News Service 3 Feb. 2010). Also, on 3 March 2009, the Military Readiness Enhancement Act of 2009 was tabled in Congress; this act would abolish the DADT policy, allow openly gay or bisexual persons to serve in the armed forces, and prohibit discrimination based on sexual orientation (SLDN n.d.b). However, the DADT policy can be repealed only with the endorsement of Congress (RFE/RL 3 Feb. 2010; CNN 2 Feb. 2010).

In addition to the DADT policy, article 125 of subsection 925 under section 10 of the United States Code stipulates that

a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense.

b) Any person found guilty of sodomy shall be punished as a court-martial may direct (US 5 Jan. 2009, Sec. 10, Art. 125).

Under article 51 of the Manual for Courts-Martial, the maximum punishment for people who are found guilty of sodomy consists of five years in prison, forfeiture of all pay and allowances, and dishonourable discharge (US 2008, subparagr. 51(e)(4)). According to a report published by Human Rights Watch in 2003, prosecutions under article 125 are uncommon, but the potential for prosecution is a concern for service members who are homosexuals (Jan. 2003, 8). A press release posted on the website of Servicemembers United, the largest organization of gay and lesbian service members and veterans in the US, indicates that a panel of military law experts have recommended that article 125 on sodomy be repealed (22 Oct. 2009).

Treatment of homosexuals in the military

According to an article published in Military Psychology in 2006, since the DADT policy was adopted in 1993, there have been reports of cases of harassment based on sexual orientation in the armed forces (Moradi 2006, 41). Following the 1999 murder of a soldier at Fort Campbell in Kentucky that is believed to have been committed due to his sexual orientation (Collier and Gilberd Oct. 2005, 12; CRS 22 July 2009, 19; SLDN 24 Mar. 2004, 20-21), the office of the Inspector General of the Department of Defense launched an investigation into whether harassment based on sexual orientation was a significant problem in the military (ibid., 22; Collier and Gilberd Oct. 2005, 12). In 2000, 71,570 members of the armed forces participated in this survey; the results indicate that 80 percent of the respondents had heard offensive statements directed at homosexuals in the previous year (US 16 Mar. 2000, i). Moreover, 37 percent of the respondents had witnessed or been involved in an incident that they considered to be harassment based on the sexual orientation of victim (ibid., i-ii). The study indicates that 4.2 percent of respondents reported ever witnessing physical assault against service members perceived to be homosexual while 1.1 percent of respondents reported that such physical assault occurred "often or very often" (ibid., 38). In correspondence sent to the Research Directorate on 26 February 2010, the director of the Palm Center at the University of California, a research institute that studies, among other current issues, sexual minorities in the military (Palm Center n.d.), stated that although the survey conducted by the Inspector General was 10 years old, it was "the best available study," and the current data indicate that "the rate of harassment remains high today" (Director, Palm Center 26 Feb. 2010).

State protection available

According to a report produced for the Center for the Study of Sexual Minorities in the Military at the University of California, there is no decree or federal law prohibiting harassment based on sexual orientation in the military (Terman May 2004, 8). However, prohibition of harassment based on sexual orientation is established by the Department of Defense in the documents describing the enforcement of the DADT policy (ibid.). The Policy Guidelines on Homosexual Conduct in the Armed Forces states that

[a]ll servicemembers will be treated with dignity and respect. Hostile treatment or violence against a servicemember based on a perception of his or her sexual orientation will not be tolerated (US 19 July 1993, 4).

According to a document attached to Instruction No. 1304.26, published on 5 February 1994, "[a] member [of the armed forces] may be separated for harassment or violence against any servicemember" (US 5 Feb. 1994). During a briefing in 2000, the Assistant Secretary of Defense for Public Affairs stated that the anti-harassment policy does not provide for punishment for those who break it (US 1 Feb. 2000).

In 2000, the Defense Secretary adopted an Anti-Harassment Action Plan that recommended, among other things, issuing a department-wide directive against harassment and holding leaders accountable for failing to enforce the directive (Terman May 2004, 9; SLDN 24 Mar. 2004, 6; CRS 22 July 2009, 20-21). In correspondence sent to the Research Directorate on 8 March 2010, a representative of the Servicemembers Legal Defense Network (SLDN), a national organization that aims to abolish discrimination and harassment of military personnel affected by the DADT policy, particularly through legal services, stated that the plan had not been implemented as of March 2010.

According to a report published by the Center for the Study of Sexual Minorities in the Military, there is no global policy regarding the treatment of complaints of harassment based on sexual orientation (Terman May 2004, 18). The websites of the Navy Inspector General and the Inspector General of the Marine Corps, as well as the representative of the SLDN indicate that members of the military who are victims of discrimination or harassment based on their sexual orientation must first file a complaint with their superior in the chain of command (SLDN 8 Mar. 2010; US 11 Apr. 2008; US n.d.a). The website of the Inspector General of the Marine Corps also indicates that a formal complaint can be made by filling out the Navy Equal Opportunity (EO) Formal Complaint form; the commanding officer then has 72 hours to forward the complaint to the General Courts-Martial Authority (GCMA) (US n.d.b). The complainant can also send a complaint to the Inspector General (ibid.). The decision rendered for a formal complaint can be appealed before one of the Federal District Courts (ibid.).

According to the 2000 survey conducted by the office of the Inspector General of the Department of Defense, of the respondents who had witnessed harassment or violence based on sexual orientation, or who had been involved in such an incident, 16 percent stated that the incident was reported to authorities on site (US 16 Mar. 2000, 13). According to several sources, despite official directives, a commanding officer could decide to investigate the sexual orientation of a person claiming to be the victim of harassment (SLDN 8 Mar. 2010; Director, Palm Center 26 Feb. 2010; Collier and Gilberd Oct. 2005, 13). Moreover, an SLDN report published in 2004 indicates that "[c]omplaints of inappropriate investigations [into their sexual orientation] by service members rarely resulted in the investigations being stopped, and often resulted in retaliation" (24 Mar. 2004, 20). The Representative of the SLDN stated that people who have tried to obtain the help of psychologists, chaplains or other health professionals have been discharged from the military, and that health professionals in the armed forces are not required to observe patient confidentiality (8 Mar. 2010).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Belkin, Aaron, Palm Center at the University of California. 27 July 2009. Self Inflicted Wound: How and Why Gays Give the White House a Free Pass on "Don't Ask, Don't Tell." [Accessed 11 Feb. 2010]

Cable News Network (CNN). 2 February 2010. "Gates: Pentagon Preparing Repeal of ‘Don't Ask, Don't Tell' Policy." [Accessed 1 Mar. 2010]

Collier, Steve and Kathleen Gilberd. October 2005. A Decade of Don't Ask, Don't Tell: The Military's Policy on Homosexuals in the Service. (Military Law Task Force of the National Lawyer Guild) [Accessed 11 Feb. 2010]

Director, Palm Center at the University of California. 26 February 2010. Correspondence sent to the Research Directorate.

Human Rights Watch. January 2003. Uniform Discrimination: the "Don't Ask, Don't Tell" Policy of the U.S. Military. [Accessed 1 Mar. 2010]

Keen News Service. 3 February 2010. Chuck Colbert. "Gates, Mullen Ready to Repeal DADT, but GOP Ready to Fight." [Accessed 1 Mar. 2010]

Moradi, Bonnie. 2006. "Perceived Sexual-Orientation-Based Harassment in Military and Civilian Contexts." Military Psychology, Vol. 18, No. 1. (University of Florida) [Accessed 11 Feb. 2010]

Palm Center at the University of California. N.d. "Palm Center: Blueprints for Sound Public Policy." [Accessed 11 Feb. 2010]

Pink News. 2 February 2010. "Top US Military Commander Says Gay Ban Must Be Lifted." [Accessed 15 Feb. 2010]

_____. 1 February 2010. Jessica Geen. "Repealing Military Gay Ban a Priority for Obama in 2010." [Accessed 15 Feb. 2010]

Radio Free Europe / Radio Liberty (RFE/RL). 3 February 2010. Andrew F. Tully. "Top U.S. Military Leaders Urge Repeal of Policy on Homosexuals." [Accessed 15 Feb. 2010]

Servicemembers Legal Defense Network (SLDN). 8 March 2010. Correspondence sent to the Research Directorate by a representative.

_____. 24 March 2004. Conduct Unbecoming: the Tenth Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass." [Accessed 11 Feb. 2010]

_____. N.d.a. "About the Servicemembers Legal Defense Network." [Accessed 11 Feb. 2010]

_____. N.d.b. "In Congress." [Accessed 1 Mar. 2010]

Servicemembers United. 22 October 2009. "Military Panel Recommends Repeal of Sodomy Statute." [Accessed 3 Mar. 2010]

Terman, Sharon. May 2004. The Practical and Conceptual Problems with Regulating Harassment in a Discriminatory Institution. Document sent by the director of the Palm Center on 26 February 2010.

United States (US). 22 July 2009. Congressional Research Service (CRS). David F. Burelli and Jody Feder. Homosexuals and the U.S. Military: Current Issues. (Federation of American Scientists, FAS) [Accessed 3 Mar. 2010]

_____. 5 January 2009. United States Code. (Cornell University - Legal Information Institute) [Accessed 11 Feb. 2010]

_____. 28 August 2008. Department of Defense. Instruction Number 1332.14. [Accessed 11 Feb. 2010]

_____. 11 April 2008. Marine Corps. "Common Hotline Complaints: Homosexuality in the Armed Forces." [Accessed 8 Mar. 2010]

_____. 2008. Manual for Courts-Martial. [Accessed 9 Mar. 2010]

_____. 20 September 2005 (amended 11 July 2007). Department of Defense. Instruction Number 1304.26. [Accessed 26 Feb. 2010]

_____. 24 January 2005. Department of Defense. Instruction Number 5505.8. [Accessed 3 Mar. 2010]

_____. 16 March 2000. Department of Defense. Office of the Inspector General. Evaluation Report: Military Environment with Respect to the Homosexual Conduct Policy. (Report No. D-2000-101). Document sent by the director of the Palm Center on 26 February 2010.

_____. 1 February 2000. Department of Defense. "DoD News Briefing - Mr. Kenneth H. Bacon, ASD PA." [Accessed 9 Mar. 2010]

_____. 5 February 1994. "Restrictions on Personal Conduct in the Armed Forces." (Don't Ask Don't Tell Don't Pursue, Stanford Law School) [Accessed 8 Mar. 2010]

_____. 19 July 1993. "Policy Guidelines on Homosexual Conduct in the Armed Forces." (Don't Ask Don't Tell Don't Pursue, Stanford Law School) [Accessed 8 Mar. 2010]

_____. N.d.a. Naval Inspector General. "Threats Against or Harassment of Service Members Based on Alleged Homosexuality." [Accessed 17 Feb. 2010]

_____. N.d.b. Naval Inspector General. "Equal Opportunity (EO) (Military Members)." [Accessed 17 Feb. 2010]

Additional Sources Consulted

Oral sources: Attempts to contact Blue Alliance, the US Department of Defense, the office of the Naval Inspector General and a professor at the University of Florida who specializes in discrimination against minorities were unsuccessful. Representatives of the Congressional Research Service (CRS) were not able to respond to a request for information within the time constraints for this Response.

Internet sites, including: Amnesty International (AI), ArmyStudyGuide.com, Blue Alliance, Center for American Progress (CAP), Fédération internationale des ligues des droits de l'homme (FIDH), Freedom House, International Gay and Lesbian Human Rights Commission (IGLHRC), Jurist, Social Science Research Network (SSRN), Sodomy Laws, Speak Equal.