UK celebrates end of ban on gay people serving in armed forces

The UK is celebrating the 20th anniversary of the ban on gay people serving in the armed forces being lifted. The ban came to an end on 12th January 2000. 

The Ministry of Defence has been lit up in Rainbow Colours to mark the celebration. 

The role of the European Court of Human Rights was crucial in bringing about the end of the ban. The judgments it issued in 1999 compelled the UK government to remove the absolute prohibition of gay people serving in the armed forces. 

For those interested in reading the legal history of these cases, I have uploaded the relevant pages from my Going to Strasbourg book here.

Several of the people who took cases to the Court, which resulted in this outcome, can be heard speaking about their experiences in a podcast available here. 

Recent changes and looking to the future: repeal of legislation and posthumous pardons

Over the last five years I have been involved in various initiatives to address discrimination against gay people in the armed forces. 

In 2015, along with Duncan Lustig-Prean, I gave evidence to the Select Committee on the Armed Forces Bill in which I argued that discriminatory provisions in the Criminal Justice and Public Order Act 1994 should be repealed. These provisions allowed a 'homosexual act' to constitute a ground for discharging a member of Her Majesty’s armed forces. The government accepted our case and the final discriminatory legislation relating to gay people in the armed forces was repealed by the Armed Forces Act 2016. The process can be read about here. 

In 2016/2017, I worked with Lord Lexden in the House of Lords to ensure that posthumous pardons granted to individuals previously convicted of homosexual offences involving consenting adults be extended to Royal Navy sailors as far as 1661. The process can be read about here.

Since 2017, Lord Cashman, Lord Lexden and I have campaigned to have posthumous pardons granted to Army and Royal Marine personnel convicted of homosexual offences prior to 1881, in the same way that their civilian counterparts have been posthumously pardoned. We explain our campaign here. 

On 21st January 2020, Lord Cashman will re-introduce the Armed Forces (Posthumous Pardons) Bill in the House of Lords, to continue our campaign of gaining posthumous pardons for men in the Army and Royal Marines shamefully convicted of homosexual offences (an earlier, identical Bill was introduced in the last session of Parliament).

Looking back: remembering B. v the United Kingdom (1983)

On anniversaries like this, it is the successful Strasbourg cases from 1999 that are most often remembered. But what has come to my mind - and a case I often think of - is the 1983 case B. v the United Kingdom.

In this case, the applicant, a male non-commissioned officer who had served in the British army for eight years, complained about his conviction for consensual homosexual acts committed in private on separate occasions with a gunner in his regiment and a civilian. The gunner was aged twenty years and six months at the time the sexual acts for which the applicant was charged took place, and the applicant was twenty-seven years old at the time of his conviction.

A consensual homosexual act committed in private by a member of the armed forces could constitute an offence under service law in force at the time. The applicant, who had an exemplary military record, was convicted after admitting to three charges under provisions in the Army Act 1955 relating to ‘disgraceful conduct of a cruel, indecent or unnatural kind’ and was sentenced to a reduction in rank and to nine months’ imprisonment with corrective military training, followed by dishonourable discharge. Although the custodial sentence was subsequently cancelled, the applicant was dishonourably discharged and, in his complaint to the European Commission of Human Rights, he argued that his conviction was a violation of his rights under Article 8 and Article 14 taken in conjunction with Article 8 of the European Convention on Human Rights.

In its consideration of the applicant’s complaint under the private life limb of Article 8, the Commission invoked the Court’s conclusion in Dudgeon that some regulation of male homosexual conduct could be considered necessary in a democratic society for the protection of morals and, moreover, this regulation may extend to consensual acts committed in private when there is need to provide sufficient safeguards against exploitation and corruption of young people. In this respect, the Commission noted that one of the charges for which the applicant had been convicted involved ‘a soldier junior in rank to him and under 21 years of age’ (a fact relevant because the minimum age for male homosexual acts under ‘civilian’ law was twenty-one years). 

Furthermore, the Commission stated that the blanket prohibition of homosexual acts involving service personnel could be considered necessary in a democratic society for the prevention of disorder because of the need to ‘maintain stricter rules over homosexual conduct in the military sphere than would be justifiable in the civilian sphere’. The Commission reached this conclusion by uncritically accepting the then view of the UK Ministry of Defence that a prohibition of homosexuality in the armed forces was ‘essential’.

Therefore, the Commission rejected the applicant’s Article 8 complaint on the basis that his ‘court-marital and dismissal from the service can be considered “necessary in a democratic society” for the “protection of morals” and also “for the prevention of disorder” in the context of military service’. The Commission provided the briefest reason for rejecting the applicant’s complaint under Article 14 taken in conjunction with Article 8, stating that his treatment pursued a legitimate aim, was not disproportionate and, being objectively and reasonably justified, could not be considered discriminatory. 

The baldness of the Commission’s reasoning is particularly striking given that the applicant had been convicted of offences that, in part, involved private and consensual sexual acts committed with a civilian (who was over twenty-one years) that were, other than under service law, legal.

Mr B. was a brave man, and I'll be remembering him this weekend.