Britain Formally Lifts Armed Forces Ban

(by the Ministry of Defense, United Kingdom, notes collected by Robert Wintemute)

On January 12, the United Kingdom government formally lifted the ban on
lesbian, gay and bisexual members of the armed forces, in compliance with
the judgments of the European Court of Human Rights in Lustig-Prean &
Beckett and Smith & Grady (see [1999] LGLN 149).
The policy involves "a code of conduct to govern the attitude and approach
to the personal relationships of those serving in the Armed Forces" which
"will apply across the Forces, regardless of Service, rank, gender or
sexual orientation". "As all personal behaviour will be regulated by the
Code of Conduct with the object of maintaining the operational
effectiveness of the three Services, there is no longer a reason to deny
homosexuals the opportunity of a career in the Armed Forces. ... As no
primary or secondary legislation is required, with effect from today,
homosexuality will no longer be a bar to service in Britain's Armed
Forces." (Unlike in the U.S., the U.K. ban was an administrative policy
that had never formally been codified in a statute or regulations. And
since 1994, no special criminal laws have applied to sexual activity
involving members of the armed forces.)

The new "Armed Forces Code of Social Conduct"  is incredibly
vague. "Examples of behaviour which can undermine ... trust and cohesion,
and therefore damage the morale or discipline of a unit (and hence its
operational effectiveness) include: unwelcome sexual attention in the form
of physical or verbal conduct; over-familiarity with the spouses or
partners of other Service personnel; displays of affection which might
cause offence to others; behaviour which damages or hazards the marriage or
personal relationships of Service personnel or civilian colleagues within
the wider defence community; and taking sexual advantage of subordinates.
It is important to acknowledge in the tightly knit military community a
need for mutual respect and a requirement to avoid conduct which offends
others." (Emphasis added.) An overall "Service Test" will be applied:
"Have the actions or behaviour of an individual adversely impacted or are
they likely to impact on the efficiency or operational effectiveness of the
Service? In assessing whether to take action, Commanding Officers will
consider a series of key criteria [not listed in the Code]." According to
Geoffrey Hoon's statement, "commanders will have to apply this Service Test
through the exercise of their good judgement, discretion and common sense".
It remains to be seen whether lesbian, gay and bisexual members of the
armed forces will be treated equally under this highly discretionary code,
in particular with regard to the criterion of the "offensiveness" of
conduct. However, the Code is a major improvement on the former blanket ban.

The Code says nothing about the position of openly lesbian, gay or bisexual
members of the armed forces, as opposed to those who are closeted but
exposed by third parties, as in Lustig-Prean & Beckett and Smith & Grady.