U.S Military Policies Concerning Homosexuals:
Development, Implementation and Outcomes
November, 2001
I. Executive Summary
Throughout the U.S. military's history, its treatment
of sexual minorities has varied both as medical and popular understandings
about homosexuality have shifted and as the needs of the armed forces
themselves have changed. Military regulations have moved increasingly
away from criminal prosecution to the discharge of homosexual service
members in response to changing views among medical professionals
about the root causes of homosexuality. The U.S. armed forces presently
maintain a complete ban on the service of sexual minorities, regardless
of conduct or performance.
Within an institution that has officially prohibited
the service of sexual minorities since the 1940s, however, the actual
implementation of the prohibition has fluctuated across time and
branch of service, as well as among commanders.
Purges and investigations of entire bases have
coexisted with the experiences of homosexual service members whose
sexual orientation was known to fellow service members and even
to commanding officers without incident. And as societal attitudes
toward homosexuality have in general become more tolerant, there
has been increasing evidence of acceptance among many heterosexual
military personnel as well.
Rates of discharge have fluctuated relative to
the manpower needs of the service. During periods of sustained conflict,
when the need for good unit function and operational effectiveness
is at its zenith, the numbers of discharges for homosexuality decrease.
Further, the policy is not uniformly implemented even in times of
peace; some homosexual service members face a lesser chance of discharge
than others because of gender, branch of service, or place of duty.
Researchers have catalogued scores of examples from the last fifty
years of service members who have served openly and with the support
and respect of their colleagues.
Department of Defense officials now acknowledge
that many homosexual service members have served honorably and well,
and they have discarded the unsupported belief that gays and lesbians
are a threat to national security They do, however, continue to
express concern that removing the ban on homosexuality would lead
to declines in morale, unit cohesion, and operational effectiveness.
Review of military, governmental, scholarly, and
non-profit research indicates that sexual orientation does not affect
service performance and does not impact national security concerns.
Evidence from foreign militaries and domestic fire and police departments
reveal that sexual minorities can be successfully integrated into
military and paramilitary organizations.
This study also contains additional qualitative
evidence that supplements more quantitative data. The report examines
the case studies of four service members who publicly challenged
the military's ban through court cases or administrative review.
The four personnel were exemplary service members before the initiation
of their cases. They include a Navy petty officer with twelve years
of service who had previously been recognized as "Aircrew Instructor
of the Year"; a graduate of the naval academy with twelve-years
experience and a commendation medal for her service during the Gulf
War; a decorated nuclear sub officer with thirteen years of service;
and a first lieutenant who served as an second-in-command of a company
in the Army Reserves.
These service members were able to continue serving
pending the outcome of their cases. Because their cases received
considerable media attention, their sexual orientation was widely
known among colleagues during their challenges. The experiences
of these service members, who collectively served openly for more
than 18 years, supplement other research findings that homosexuals
can be successfully integrated into military organizations. These
service members maintained collegial relationships with co-workers,
received outstanding evaluations, won awards, and received promotions
during their periods of open service. They also maintained high
levels of responsibility, managing personnel, overseeing military
budgets, and commanding troops.
II. Introduction
Throughout the U.S. military’s history,
its treatment of sexual minorities has varied both as medical and
popular understandings about homosexuality have shifted and as the
needs of the armed forces themselves have changed. Military regulations
have moved increasingly away from criminal prosecution to the discharge
of homosexual service members in response to changing views among
medical professionals about the root causes of homosexuality. Within
an institution that has officially prohibited the service of sexual
minorities since the 1940s, however, the actual implementation of
the ban has fluctuated across time and branch of service, as well
as among commanders. During periods of war, rates of discharge have
declined as manpower needs have increased. Numerous examples exist
of gay and lesbian military personnel who have served with the knowledge
of other colleagues and even commanders. Further, not only does
a service member’s chance of being discharged vary by branch
of service, but female service members also comprise a disproportionate
number of those separated under the policy. Department of Defense
officials have acknowledged in the past decade that the ban on homosexual
service members has not resulted in the complete removal of gays
and lesbians from the military and that many sexual minorities have
served honorably in the U.S. armed forces. However, they continue
to maintain that a removal of the ban would negatively affect morale,
unit cohesion, and operational effectiveness within the U.S. military.
This report examines the development of,
and reasoning behind, U. S. military policies restricting the service
of homosexual men and women. It further analyzes scholarly, military,
and governmental data concerning gay and lesbian service members
and their effects on military operations. Studies of homosexual
military personnel, foreign militaries, and domestic police and
fire departments have consistently indicated that gay and lesbian
service members can be successfully integrated into military and
paramilitary organizations. This report then examines in detail
the case studies of four service members who openly challenged the
military’s ban while continuing to serve in the military. Collectively,
they have served more than 18 years as openly homosexual military
personnel. While these cases offer additional examples of exemplary
service by homosexual service members, they also detail the responses
of heterosexual personnel to extended service with openly homosexual
military officers. Such case studies are meant to add nuance and
detail to the quantitative research that has been established over
the last fifty years, which have failed to measure any negative
effect of the service of sexual minorities on the morale, unit cohesion,
or operational effectiveness of military units. These service members
in the four case studies maintained collegial relations with their
co-workers, and they received promotions, medals and commendations,
exemplary evaluations, and continued high levels of responsibility
during their periods of open service.
III. Methodology
Information collected for this report was
systematically gathered from publicly available primary and secondary
sources concerning the historical development of the U.S. militarỳs
policy on homosexuality. In addition, this report draws extensively
upon military, governmental, and scholarly research relevant to
understanding outcomes associated with homosexual military service.
Such research includes assessments by the military, the government,
and non-profit organizations on the policy and its implementation,
as well as studies on homosexual service members and veterans, foreign
militaries, and domestic fire departments that have established
non-discrimination policies for sexual orientation, unit cohesion
and inter-group relations, sexual behavior, issues of privacy and
personal modesty, sexual orientation, attitudes among military personnel,
and military discharge statistics. Independent observations from
multiple sources were compared to draw out common findings that
are consistent among researchers in different sectors (e.g., military,
academic, non-governmental). The citations and bibliographies from
sources were used as additional resources to ensure the broadest
possible inclusion of relevant research material.
This report further draws upon legal, military,
governmental, scholarly, and journalistic sources relevant for understanding
the development of court and administrative cases challenging the
militarỳs policy over the last decade. Content analysis was done
of Lexis/Nexis search retrievals for news articles and wire service
dispatches relating to administrative and court challenges in the
past decade (n=137). Present and former sexual minority
participants and colleagues were also interviewed (n=7), and these
interviews were supplemented with court transcripts and public comments
found in newspaper accounts (n=121).[1]
The cases detailed in this report involve service members who continued
to serve pending the outcomes of their challenges. Such cases are
meant to add qualitative depth and nuance to the findings of quantitative
research related to outcomes associated with homosexual military
service. The case studies were chosen because they represent cases
in which, due to the high levels of media interest, the sexual orientation
of the challenger was widely known by colleagues throughout the
contestation of their discharges.
IV. A Brief History of
Military Policies Concerning Sexual Minorities
MILITARY POLICY PRIOR TO WORLD WAR II
Prior to World War I, the U.S. military did
not maintain specific regulations addressing homosexuality among its
service members. Instead, individual commanders retained considerable
discretion over the control and discipline of soldiers under their
command. Evidence exists of both the participation
of gay military personnel and of discharges for homosexuality as far
back as the revolutionary war (Shilts, 1993; Katz, 1992).[2]
While documents concerning same-sex sexual behavior from this time
are scarce, it is believed that not all reported cases were prosecuted
(Katz, 1992). The Articles of War of 1916 addressed
the issue of homosexual conduct for the first time, although prohibition
was limited to assault with the intent to commit sodomy.[3]
In the 1920 revision of these regulations, consensual
sodomy was listed as criminal behavior and made punishable by imprisonment
(Shilts, 1993; National Defense Research Institute, 1993).[4]
Following World War I, psychiatrists favoring personality development
models persuaded Army officials that they could identify and screen
out men with personality disorders, thereby minimizing the psychological
casualties of war. While the psychiatrists who framed the standards
drew upon personality development theories, however, the Army embedded
the screening protocols they developed in the language of degeneration.
Human beings were ranked according to hierarchical categories of characteristics,
and the Army excluded those who were deemed inferior. In 1921, the
Army issued standards that disqualified men who displayed "the
stigmata of degeneration" (Berube, 1990, p. 13). Those with a
"degenerate physique" included men with female physical
characteristics, which were defined to include sloping shoulders,
broad hips, an absence of facial and body hair, and a lack of secondary
sexual characteristics (Berube, 1990, pp. 13-14; National Defense
Research Institute, 1993). A young man with a "scant and downy
beard" or a "female figure" was to be closely observed
for indications of "internal glandular disturbances" (Berube,
1990, p. 14). In addition to classifying physical characteristics,
the Army standards established the broad category of "sexual
perversion," which included oral and anal sex among men, as one
sign of "functional" degeneracy. Finally, the screening
list detailed "sexual psychopathy" as a "constitutional"
psychopathic state, which indicated a biological problem of a psychiatric
nature that made a person unable to adjust to civilized society (Berube,
1990, p. 14).
During the inter-war period, however, a shortage of volunteers and
a lack of pressure from psychiatrists meant in practice that the Army’s
screening standards were rarely implemented (Berube, 1990). Although
the Articles of War listed sodomy as a court-martiable offense, service
members who were determined to have engaged in sodomy were more frequently
discharged administratively under a "Section VIII" discharge
for unsuitability (National Defense Research Institute, 1993). Such
discharges were generally classified as less-than-honorable, or "blue".[5]
However, imprisonment for homosexual conduct did continue to occur
(Shilts, 1993; Jennings, 1994); for example, the Army convicted 34
soldiers for sodomy and related offenses from July 1938 to May 1941
(Berube, 1990). While psychiatric developers of World War II screening
plans would discard the outdated categories of "anatomical and
functional stigmata of degeneration," this terminology would
continue to be used by the Army and Navy through the Second World
War. Army and Navy officials would persist in describing homosexuality
as a "constitutional psychopathic state" and to diagnose
gay and lesbian service members as "sexual psychopaths"
(Berube, 1990, p. 14).
WORLD WAR II POLICIES
During World War II, military leaders engaged in substantial
debate about the policies and practices related to homosexuality in
the armed forces, and considerable revision of regulations occurred
throughout the services.[6] World
War II required a mass mobilization unlike any previously seen in
U.S. history; the Selective Training and Service Act of 1940 resulted
in the immediate registration of more than 16 million men (D’Emilio,
1998).[7] Debate concerning homosexual
policies stemmed both from the widespread variation in the handling
of individual cases and the U.S. government’s reliance on the
psychiatric establishment to assist in weeding out soldiers who were
considered unfit to serve (National Defense Research Institute, 1993;
Jennings, 1994). By November 1940, the Selective Service issued a
memorandum to volunteer physicians at local draft boards that explained
in lay terms five psychiatric "categories of handicap" and
concluded with a list of miscellaneous "deviations" that
physicians should be alert for (Berube, 1990, pp 11-12). Homosexuality
was not included in the first circular. By mid-1941, however, the
Army and Selective Service would include "homosexual proclivities"
among the list of disqualifying "deviations" (Berube, 1990,
p. 12). The Navy by this time had issued its own directive precluding
the induction of those "whose sexual behavior is such that it
would endanger or disturb the morale of the military unit," but
it did not explicitly mention homosexuality (Berube, 1990, p. 12).
Psychiatric leaders involved in establishing the guidelines would
push for treatment of homosexuality as a mental illness, rather than
as a crime than demanded imprisonment.
In 1942, Army leaders advanced the first regulations that differentiated
between homosexual and "normal" individuals, provided signs
of homosexuality, and clarified the procedures for the exclusion of
gay service members. Those who "habitually or occasionally engaged
in homosexual or other perverse sexual practices" were not to
be inducted (Berube, 1990, p. 19; Shilts, 1993). The
regulations detailed three possible signs for identifying gay men:
"feminine bodily characteristics," "effeminacy in dress
and manner," and a "patulous [expanded] rectum" (Berube,
1990, p. 19).[8] The Army, Navy and Marine
Corps did not initially develop screening procedures for women, instead
basing their protocol on the standards established for men. In October
1944, after most of the WAC recruiting had been completed, the WAC
would finally establish standards for women that explicitly included
homosexuality as a reason for disqualification (Berube, 1990).
In 1943, new Navy regulations focused on "homosexuals"
rather than "sodomists".[9]
Criminal penalties for sodomy were not, however, actually eliminated
(National Defense Research Institute, 1993). Those
who engaged in same-sex sexual behavior were either to be administratively
discharged or allowed to resign, unless their behavior was violent
or involved a minor.[10] The Navy directive
also noted that the policy applied to the Women’s Reserve, as
well. Under Army regulations, those who were not "confirmed perverts"
and who were considered to possess a "salvage value" were
to be returned to duty after appropriate disciplinary action (Berube,
1990, p. 140). By 1944, the medicalization of homosexuality was complete.
The Army circular broadened the category of offenders who might be
reclaimed from those who had gone astray to the "true or confirmed
homosexual[s]" whose "cases reasonably indicate the possibility
of reclamation" (Berube, 1990, p. 142). The Navy’s 1944
circular introduced for the first time in that military branch the
concept of those who have homosexual "tendencies" and stated
that even if no sexual contact actually occurred, those with homosexual
tendencies were to be identified and prohibited from serving in the
military or discharged upon discovery (Berube, 1990, p. 142; RAND,
1993).
POLICIES CONCERNING
HOMOSEXUALITY AFTER WORLD WAR II
In 1949, the Department of Defense distributed a memo unifying the
military services’ regulations relating to homosexuality. Unlike
the wartime policy, there was to be no "rehabilitation"
of gay and lesbian personnel. The memo stated:
[H]omosexual personnel,
irrespective of sex, should not be permitted to serve in any branch
of the Armed Services in any capacity, and prompt separation of
known homosexuals from the Armed Forces is mandatory. (Cited in
Berube, 1990, p. 261)[11]
The memo urged more careful investigations
of suspected homosexuals and the establishment of better communication
between the military branches to facilitate the exchange of information
concerning homosexuals. The Department of Defense also recommended
that each branch of the military give lectures about homosexuality
modeled on existing venereal disease lectures (Berube, 1990).
In 1950, Congress replaced previous military judicial
statutes with the Uniform Code of Military Justice (UCMJ) to increase
civilian control of military disciplinary actions.[12]
The UCMJ, which was designed to protect the due process rights of
service members, standardized the criminal statutes, court-martial
procedures, and appeals processes across the armed forces (Berube,
1990). The Uniform Code of Military Justice remains in effect today.
Article 125 of the UCMJ prohibits sodomy, which it defines as "unnatural
carnal copulation" (Cited in Lever and Kanouse, 1996, p. 28).
Although the article does not explain "unnatural
carnal copulation" in greater detail, the Manual for Courts
Martial defines the phrase to include anal or oral sex or sex with
an animal; Article 125 applies to both same-sex and opposite-sex
conduct (Lever and Kanouse, 1994; National Defense Research Institute,
1993).[13] While prosecutions of heterosexuals
under the sodomy statutes have occurred (Jacobson, 1996), military
officials continue to view homosexuals categorically as potential
sodomites (Lehring, 1996). The illegality of sodomy under the UCMJ
has been used as justification for the prohibition on homosexual
service (Lever and Kanouse, 1996). The maximum penalty for consensual
sodomy under Article 125 is five years at hard labor, forfeiture
of pay, and dishonorable discharge (D’Amico, 1996).
Widespread fears of subversives at the height of the Cold War led
to crackdowns on sexual minorities throughout the military and government
in the 1950s. In 1953, President Eisenhower signed Executive Order
10450, which made "sexual perversion" grounds for dismissal
from federal employment. It is estimated that dismissals
from federal jobs increased tenfold in the wake of Eisenhower’s
order (National Defense Research Institute, 1993).[14]
The rates of discharge as a percentage of total number of military
personnel grew ten-fold in the armed forces as well in response
to Eisenhower’s order (National Defense Research Institute,
1993). Separations further increased another 50% by the beginning
of the 1960s (D’Emilio, 1998).
The policy of the Department of Defense concerning discharge for
homosexuality was further amended in 1959 and 1965. In 1959, Section
VII.I of 1332.14 on administrative discharges listed "sexual
perversion," including homosexual conduct and sodomy, as indications
of "unfitness" meriting discharge. Procedures for discharge
under less-than-honorable circumstances were liberalized in 1965
to allow service members to challenge their discharges in front
of administrative discharge boards and to have legal counsel present
(National Defense Research Institute, 1993). Continuing inconsistencies
in standards, required documentation, and administrative hearings
led, however, to a further review of the policy during the Carter
Administration. The Department of Defense issued Directive 1332.14
on January 16, 1981, in response to court rulings that had questioned
inconsistencies in the way the prior policy had been implemented
(National Defense Research Institute, 1993). The purpose of Directive
1332.14 was to make clear that discharge would be mandatory for
any service member who "engaged in, has attempted to engage
in, or has solicited another to engage in a homosexual act"
(Cited in RAND, 1993, p. 8). The new policy voided all clauses in
military regulations that had permitted the retention of homosexuals
(Shilts, 1993); prior to the development of the new directive, final
decisions about the separation of service members had been left
to the discretion of individual commanders (Korb, 1994). Directive
1332.14 also stated that, in the absence of aggravating circumstances,
a gay or lesbian service member was to receive a discharge under
honorable conditions.[15] The 1981
directive would remain in effect until President Clinton’s
efforts to remove the ban in 1993 (Burrelli, 1994).
THE CREATION OF A NEW POLICY UNDER PRESIDENT
CLINTON
During the 1992 presidential campaign, then-candidate Clinton vowed
to "lift the ban" on sexual minorities serving in the
military (Burrelli, 1994, p. 20). Clinton’s
vow created a firestorm of opposition among the Joint Chiefs of
Staff, Armed Services Committee Chair Sam Nunn, and other members
of Congress, and opponents mobilized immediately to block the president’s
efforts (McFeeley, 2000).[16] On January
29, 1993, President Clinton instructed the secretary of defense
to draft an "Executive Order ending discrimination on the basis
of sexual orientation in determining who may serve in the Armed
Forces of the United States" (Cited in Jacobson, 1996, p. 39).
Congress held a series of hearings on the matter in the spring of
1993. While the issue was being debated, the Clinton Administration
established an interim policy that prevented military officials
from asking recruits about their sexual orientation and placed those
in the process of discharge on stand-by reserve (Halley, 1999; Burrelli,
1994).
The final policy, termed "don’t ask, don’t tell,
don’t pursue," was intended to be a compromise that would
ease restrictions against homosexual service members without leading
to an outright removal of the ban. The military would be prohibited
from asking a service member about his or her sexual orientation,
but it would still be able to discharge service personnel on the
basis of credible investigative information, or if the service members
voluntarily admitted his or her orientation. Unlike the old policy,
which expressly prohibited both homosexual conduct and homosexual
status, the new policy was supposed to distinguish between homosexual
orientation, which would not be a bar to service, and homosexual
conduct, which would be (Halley, 1999). In February 1994, the Department
of Defense issued its directive implementing the new policy. The
Department of Defense declared, "A person’s sexual orientation
is considered a personal and private matter and is not a bar to
service unless manifested by homosexual conduct" (Cited in
Burrelli, 1994, p. 28). The directive also stated:
The Department of Defense has long held
that, as a general rule, homosexuality is incompatible with military
service because it interferes with the factors critical to combat
effectiveness, including unit morale, unit cohesion and individual
privacy. Nevertheless, the Department of Defense also recognizes
that individuals with a homosexual orientation have served with
distinction in the armed services of the United States.
Therefore, it is the policy of the Department of Defense to judge
the suitability of persons to serve in the armed forces on the
basis of their conduct. Homosexual conduct will be grounds for
separation from the military services. Sexual orientation is considered
a personal and private matter, and homosexual orientation is not
a bar to service entry or continued service unless manifested
by homosexual conduct. (Cited in Department of Defense, 2000)
By the time that the Department of Defense
issued its implementing regulations, however, Congress had already
passed legislation that weakened the proposed distinction between
conduct and status. On November 30, 1993, the new policy was codified
into law by congressional passage of the Defense Authorization Act.
The Act reiterates the earlier view that homosexual service members
constitute an "unacceptable risk to the high standards of morale,
good order and discipline, and unit cohesion" (National Defense
Authorization Act for Fiscal Year 1994, 1993). It lists the grounds
of discharge as engaging in, attempting to engage in, or soliciting
another to engage in homosexual acts; stating one is homosexual
or bisexual; or marrying or attempting to marry a member of the
same sex (National Defense Authorization Act for Fiscal Year 1994,
1993). The act emphasizes that homosexual conduct is forbidden at
all times, regardless of whether one is off-duty or off base. The
legislation also expressly allows for the reinstatement of enlistment
questions concerning sexual orientation (Rayside, 1996). Service
members may challenge their separation by, among other things, demonstrating
that they do "not have a propensity or intent to engage in
homosexual acts" (National Defense Authorization Act for Fiscal
Year 1994, 1993).[17] Finally, the
amendment omits the Clinton Administration’s objective of enforcing
sodomy laws equally for heterosexuals and homosexuals (Rayside,
1996).
In 1999, the Defense Department issued two policy memoranda clarifying
the application of the policy on sexual minorities. The memoranda
emphasized that the report of harassment or threats because a service
member is perceived to be homosexual do not themselves constitute
credible information justifying the initiation of an investigation
into the sexual orientation of the member in question (Office of
the Under Secretary of Defense, 1999).
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