Court may have to rule on homosexuals in the military

Date: 11/07/1996

By Thomas Klau

THE European Court of Justice may be asked to give a landmark ruling on homosexuality in the EU in a case currently before the High Court in London involving a gay soldier dismissed from the British Royal Navy.

Medical assistant Terence Perkins is challenging his discharge on the grounds that the Union's equal treatment directive forbids the UK ministry of defence from excluding homosexuals from the military.

Lawyers say it is the first time a British soldier has challenged his discharge specifically because of European law.

London discharges gay soldiers when their sexual orientation becomes known to the authorities, arguing that homosexuality is “inconsistent with service in the Armed Forces” as it might have a disruptive effect on military discipline.

Perkins' solicitors now want the High Court to refer the case to the ECJ. If it agrees to do so, the Luxembourg judges would be confronted with the task of formulating a ground-breaking ruling with potential implications far beyond the British military.

They would have to decide whether the 1976 directive outlawing unequal treatment between women and men in the workplace and related activities also applies to homosexuals.

While Union sources say the directive was initially targeted specifically at fighting discrimination between men and women, they point to the fact that, in at least one previous decision, the Court has clearly widened the directive's application beyond its original scope.

In a judgement earlier this year, the Court decided the directive covered the case of a transsexual dismissed from work after deciding to undergo a sex-change and ruled in her favour.

Commission sources stress the key protection given by the directive is the reversal of the burden of proof, making it an employer's duty to justify any dismissal challenged in court.

But Article 2 of the directive also allows members states to exclude citizens from specific activities on gender grounds, if sex is a determining element of the professional activity.

This provision has successfully been cited by lawyers defending a country's right to exclude women from its armed forces and, more specifically, from fighting units.

Legal experts say the judges might rule that this provision allows homosexuals to be banned from the military.

Attempts by the Commission to include sexual orientation as one issue specifically protected under EU law have been blocked by the Council of Ministers.

While some countries have introduced legislation designed to protect homosexual citizens against negative discrimination, other more conservative member states have rejected such attempts.

This diversity is reflected in the way EU countries deal with homosexuals in the military. The Hague, for example, encourages gay soldiers to 'come out', while Bonn pursues a policy of allowing homosexuals in the ranks, but not in the officer corps.