Transsexual Case Wins Arguments
For Gays In the UK Armed Forces

By Tim Butcher, Defence Correspondent
The Electronic Telegraph and Daily Telegraph


March 14, 1997

THE ban on homosexuals serving in the Armed Forces may have to be reviewed after a High Court judge referred a test case concerning a sacked Royal Navy medical assistant to the European Court of Justice yesterday.

In his judgment Mr Justice Lightman said "homosexual orientation is a reality today which the law must recognise and adjust to". The judge agreed to refer the case of Terry Perkins to Luxembourg for a ruling - probably in about 18 months - on whether Britain was breaking the EU's Equal Treatment Directive in the light of a recent European judgment giving transsexuals the same protection as other men and women from discrimination and unfair treatment at work.

Mr Perkins, 28, was discharged from the Royal Navy hospital at Gosport, Hants, in 1995, despite an exemplary five-year service record, after investigators discovered his homosexuality. If the ruling goes against the Government, hundreds of former service personnel dismissed for being homosexual could claim millions of pounds in damages.

In his 34-page ruling Mr Justice Lightman said the decision to apply the directive to transsexuals could be extended to homosexuals as both were "states of mind relating to sex".

"It may well be thought appropriate that the fundamental principle of equality and the irrelevance of a person's sex and sexual identity demand that the court be alert to afford protection to them and ensure that those of homosexual orientation are no longer disadvantaged in terms of employment, save and unless the discrimination is justified.

"After the decision in the Cornwall case [concerning transsexuals], it is scarcely possible to limit the application of the directive to gender discrimination, as was held in the Smith case [an earlier case turned down by the Court of Appeal], and there must be a real prospect that the European Court will take the further step to extend protection to those of homosexual orientation." The judge said he believed Mr Perkins had a "significant prospect of success" in the European Court.

The ban, which is supported by ministers and senior officers, would have to be scrapped if the court ruled it contravened European law. Nicholas Soames, Armed Forces minister, said the Government would continue to fight the case by arguing that the directive was not applicable in cases of sexual orientation and that military effectiveness required the ban to be maintained. "Homosexuality is not compatible with the trust that must exist between comrades in arms," he said.

An MoD spokesman said: "The MoD continues to believe that the directive applies only to discrimination against men or women on the grounds of gender and not sexual orientation. The MoD will be arguing in the European Court that the exclusion of homosexuals from the Armed Forces is purely for the reason of combat effectiveness and incompatibility and such key defence decisions are outside the scope of the EC treaty from which the directive derives and so are outside the scope of the Court of Justice."

Mr Perkins's legal team had argued that his dismissal contravened the directive as it applied to sexual orientation as much as it applied to gender. Such an argument had been dismissed in a different case last year when the High Court and Court of Appeal ruled the directive could not be extended to discrimination on grounds of sexual orientation.

But in a subsequent ruling in the "Cornwall case" the European Court extended to transsexuals the full protection offered by the directive

At least 30 other claims for damages are being held pending the conclusion of the Perkins case. If the ruling goes against the MoD all members of the services who have lost their jobs on the grounds of homosexuality since 1979 would have grounds for compensation. Campaigners said there could be more than 1,000 claimants.

Mr Perkins said he was "over the moon" with the referral and had "no doubt" he would win. "It is a very significant ruling. The stance of the MoD is so narrow minded. I could have said I was not gay and stayed on but I wanted to be open. They wanted me to leave very quietly. In the end I was booted out and left with nothing."

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