Homosexuality, Law and Resistance

Derek McGhee

• Publisher: Routledge
• Year: 2013
• eBook ISBN: 9781134535392
• Edition: 1
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

This book explores contemporary social theory and developments in the study of sexuality through the analysis of law and its practices. Each chapter explores the power of discourse in law in relation to homosexualities, while simultaneously examining how homosexuals resist and disrupt these legal discourses. It is a valuable addition to the literature of the fields of Sociology, Cultural Studies, Law, Politics, Gender Studies and Sexuality.

1 Military men

Queering the homosocial habitus

Inarguably, there is a satisfaction in dwelling on the degree to which the power of our enemies over us is implicated, not in their command of knowledge, but precisely in their ignorance.

(Sedgwick 1991: 7)

Introduction

By virtue of section 1(1) of the Sexual Offences Act of 1967, homosexual acts in private between two consenting adults (at the time meaning 21 years or over) ceased to be a criminal offence. However, such acts continued to constitute offences under the Army and Air Force Acts of 1955 and the Naval Discipline Act of 1957 (section 1(5) of the Sexual Offences Act of 1967). Section 1(5) of the 1967 Act was repealed by the Criminal Justice and Public Order Act of 1994 (which also reduced the age of consent to 18 years). However, section 146(4) of the 1994 Act provided that nothing in that section prevented a homosexual act (with or without other acts or circumstances) from constituting a ground for discharging a member of the armed forces.

This chapter focuses on the law and policy that informed the exclusion of homosexuals from the British armed forces. The focus of this case study is on the Ministry of Defence’s (MoD’s) identity- or status-based homosexual exclusion policy. My analysis of this identity-based exclusion policy primarily focuses on the MoD’s machinery for producing discursive homosexual identities as being incompatible with armed service. I trace the trajectory of this production of homosexual incompatibility through various legal sites, for example the institutional practices of the courts, parliamentary debates and reports, and MoD reports. There are two documents that are of central importance to the analysis. These are the 1995–6 House of Commons Select Committee on the Armed Forces Bill Report¹ and the 1996 Report of the Homosexuality Policy Assessment Team (HPAT)² which resulted from the MoD’s internal review of the exclusion policy. These two reports are crucial to this case study since the evidence collated within the HPAT report was quoted as being the decisive factor in the decision by the 1996 House of Commons Select Committee to propose to Parliament that the homosexual exclusion policy in armed forces should be retained. The 1995 judicial review³ and subsequent 1996 appeal⁴ trials are also referred to in the analysis that will follow, as a means of illustrating certain points (although, overall the analysis is concerned with the policy surrounding the ban rather than the legality or ‘unreasonableness’ of the ban).

The first section of the case study focuses on the MoD’s discursive deployment of homosexual identity as being incompatible with armed service. Here, I am especially concerned with demonstrating the MoD’s production of the issue as a matter of the consequences of lifting the exclusion policy. This framing of the issue by the HPAT facilitates my analysis of the exclusion policy as a politics of identity, or more accurately a politics of identification. Here the identity politics does not consist of a gay and lesbian challenge to the exclusion policy, but of a politics of identification based on the attempt by the armed forces to defend and protect the bounded heterosexualised identity of the armed forces as an institution. The HPAT and its subsequent report are the primary machinery for producing the idea of the heterosexual purity of the armed forces as being under threat from the infiltration of ‘acknowledged’ or ‘out’ homosexuals.

The HPAT’s brief was to investigate the hypothetical attitudes and feelings of ‘ordinary servicemen and women’ towards openly homosexual servicemen and women being allowed to join the armed forces. The MoD intended to present these findings as evidence that ‘ordinary’ members of the forces would not tolerate ‘acknowledged’ homosexuals in their platoons and regiments, and that the inclusion of homosexuals would undoubtedly disrupt the trust and cohesion found in such groups. My analysis proceeds to examine the gaps in the MoD’s discourse of homosexual incompatibility. These gaps emerge as traces of non-evidence, which expose the existence, and evidence (through a present-absence) of, a wholly ‘other’ homosexual who is already inside the allegedly pure heterosexual context of the armed forces. In the third section of the chapter I focus on this homosexual, who, despite the MoD’s discursive deployments of homosexual incompatibility, seems to be compatible to the armed forces. My analysis in this section employs the insights and concepts of various social theorists, for example, Bourdieu’s concept of habitus, Foucault’s concept of panopticism (which he borrows from Bentham), Sedgwick’s homosociality, Butler’s gender as corporeal signification, and also de Certeau’s work on tactical forms of resistance. By using the latter concepts and theoretical frameworks I describe the armed forces environment as a homosocial habitus which is regulated by informal structures. I demonstrate that these structures operate at the level of the cultural signification of sexuality in and through the signifier of gender. In this section I describe how it is that a homosexual serviceman⁵ can pass as an assumed heterosexual in this armed forces environment by looking and acting the part within this panoptic homosocial habitus. This involves the performance of the appropriate corporeal signification of gender, or more specifically heterosexual masculinities. This performance, then in turn signifies an underlying assumed or actual heterosexual orientation.

The fourth main area of inquiry in this case study is how the tactical passing as assumed heterosexuals by homosexual servicemen within the armed forces homosocial habitus is finding its way into policy. The last section of this chapter explores various examples of what I refer to as passing policies, ranging from the inadequate US ‘don’t ask, don’t tell’ policy to the policy proposed by Stonewall to the 1995–6 House of Commons Select Committee on the Armed Forces Bill. Stonewall advocated the implementation of a Uniform Code of Sexual Conduct, and a Code of Guidance (along the lines of the Australian Defence Forces code of guidance). Implicit in Stonewall’s policy proposals is a right to privacy that is consistent with the passing of homosexual forces members as non-disruptive assumed heterosexuals. As well as discussing this proposed policy, I also analyse in the postscript to this chapter a policy change, in itself a passing policy, which has been developed from within the MoD as a result of the unfavourable findings of the European Court in 1999.

The final section of this case study is devoted to various policies and policy proposals and designs that refocus and reframe the discursive context of the MoD’s homosexuality incompatibility discourse. These ‘passing policies’ are policies which foreground the informal homosocial structures of armed forces environments (domestic and international) and the body as the place of choreographed ‘assumed heterosexual’ compatibility.

The trials

In 1995 four applicants – one lesbian, Jeanette Smith, and three gay men, Graeme Grady, Duncan Lustig-Prean and John Beckett,⁶ who were administratively discharged from the respective armed forces in which they served – launched a legal challenge to the homosexual exclusion policy by way of a judicial review. During the judicial review the test the courts applied to the case was the Wednesbury test of ‘irrationality’. In deciding on this point Lord Justice Simon Brown, in the High Court, held that the policy was not ‘irrational’ (in the legal sense) at the time it was passed, but he made it very clear that he thought the policy was wrong. The judicial review failed to prove that the ban on homosexuality in the armed forces was ‘unreasonable’. This decision was appealed against, in the Court of Appeal, and here it was also held that the policy could not be ‘stigmatized as irrational’ at the time that it was last reviewed. However, this decision was made partly on the basis that the policy was shortly to be reviewed internally by the MoD (by the HPAT) and by Parliament (in the 1995–6 House of Commons Select Committee for the Armed Forces Bill).

The Homosexuality Policy Assessment Team

The HPAT was established in September 1995 to undertake an internal assessment of the exclusion policy on homosexuality in the armed forces. This internal assessment was recommended when the High Court found in favour of the MoD during the 1995 judicial review of the legality of the MoD’s policy of excluding homosexuals from the armed forces (HPAT 1996: 15).

The overall approach of the HPAT was to ‘set out to collect and assess all information relevant to the issues of acknowledged homosexuals serving in the British armed forces’ (HPAT 1996: 25). The team used a multi-faceted study design in order to collect the attitudes of what they describe as ‘ordinary’ British forces’ members towards the unbarring of ‘acknowledged’ homosexuals in the armed forces. The qualitative and quantitative data they obtained was collected through attitude surveys, interviews, discussion groups and correspondence. They also used additional information obtained from relevant published material and interviews with experts on the subject, and correspondence was also considered in the overall assessment (HPAT 1996: 25). Between 4 October and 22 November 1995, the HPAT administered a total of 1,711 attitude survey questionnaires (1,710 of which were said to be suitable for analysis). The HPAT’s means of gathering their qualitative and quantitative data was as follows:

For each service, the single service representative within the HPAT identified representative combat, combat support and training units. The HPAT visited each unit or base for a full day, a minimum of 170 personnel was requested to attend a briefing and complete a questionnaire [the attitude survey]. From that pool 18 people were required to take part in one-to-one structured interviews and a further 18 people were requested to attend focus (i.e. discussion) groups.

(HPAT 1996: Annex G)

The overall result of the 1,710 analysable attitude questionnaires was that the policy banning homosexuals from serving in the armed forces should not be changed, and if the ban was to be lifted it would be done against the wishes of those surveyed (HPAT 1996: 45). The findings of the one-to-one interviews and the focus groups were, in summary: that there was an overwhelmingly held view that homosexuality was neither ‘normal’ nor ‘natural’. Other minorities, such as women and ethnic groups, were described as being ‘normal’ and therefore more compatible to armed service than homosexuals. Lesbianism was more acceptable than male homosexuality; in addition, it was often mentioned that lesbianism did not involve sodomy, which was considered by many to be particularly distasteful; and the results showed that servicewomen were generally more tolerant of homosexuality than servicemen (HPAT 1996: 49).

The findings of the HPAT set the agenda through which this issue of the homosexual exclusion policy was to be approached during the 1995–6 House of Commons Select Committee on the Armed Forces Bill. During the hearings of this decisive Select Committee there was a reiteration of the discursive production of homosexuals as being disruptive to operational effectiveness through their recognisable difference and inability to control their sexual advances towards ‘ordinary’ servicemen and women. These discursive technologies for justifying the necessity of the homosexual exclusion policy will be discussed in the following sections.

The machinery of exclusion

I Privacy, paranoia and cohesion

One component of the MoD’s homosexual incompatibility discourse is the issue of ‘privacy’ (or lack of privacy) in the armed forces environment. The ‘problem’ the MoD presented was the lack of ‘privacy’ in the armed forces, in relation to ‘civilian life’, for the consummation of homosexual relations. However, allied with this was the concern over non-privacy in the armed forces environment as an issue of the protection and distancing of heterosexuals from sexual objectification by homosexuals in intimate ‘residential’ situations. In these particular spaces, heterosexuals would be unable to escape and get away from homosexuals. The threat posed by a ‘homosexual presence’ was presented in terms of the heterosexual’s fear of being looked at, and the concern that heterosexuals should be protected from their own temptations in terms of engaging in sexual activities with homosexuals. This need for heterosexual servicemen to escape from homosexuals is presented in the following passage taken from the HPAT’s summary of its ‘overall findings’:

Homosexuality in civilian life did not bother most servicemen or servicewomen. Focus group participants emphasized that civilians have ‘jobs’, but they have a ‘way of life’. Most civilian jobs were not seen as requiring close physical contact with other people, or involving life-threatening situations dependent upon total trust in a work team. A person’s sexuality, therefore, would not, and generally should not, necessarily be of any concern in civilian life. A view expressed in most focus groups was that at the end of a ‘9 to 5’ job, one could usually get away from a homosexual if one wanted to. This was not the case in the armed forces, in many cases, one might have to live with the same people, for 24 hours a day, over extended periods. In ships, in submarines in particular, there is nowhere to get away and ‘escape’. Living with homosexuals: sharing accommodation and washing facilities, and the lack of privacy, were of great concern to most participants, although the women tended not to be as worried as the men.

(HPAT 1996: 49)

The nakedness of bodies in showers seemed to be particularly invested with sexual potential by the MoD in the HPAT report. The crux of the matter, according to the MoD, was, if they allowed homosexuals to enlist in the armed forces this would be tantamount to condoning the eroticisation of ‘ordinary’ heterosexual servicemen by voyeuristic homosexuals.⁷ These concerns are articulated in the following passage:

Heterosexuals … having to live (and not simply work) in very close, inescapable proximity for unremittingly long periods alongside known homosexuals … would mean heterosexuals being unable to escape the sexualised gazes of others who might see potential objects of physical desire rather than simply the often naked bodies of comrades. It would often also mean unwillingly colluding in potentially erotic situations through touching, lying alongside or having constantly to brush past homosexuals.

(HPAT 1996: 120)

An allied concern about the presence of acknowledged homosexuals in the armed forces was the suspicion that someone (thought to be, or predominantly heterosexual) could be suspected of ‘giving in’ to a homosexual’s advances. It was thought that this suspicion would become pronounced especially in relation to isolated shared tasks such as: small group detachments; observation posts; sentry duty (which regularly continues for an entire week) and technical jobs in confined spaces (HPAT 1996: 63–4). According to the HPAT, ‘an important background concern in all this would be “not what might happen but what would be said to have happened”, about which suspicions could reverberate around task or informal groups indefinitely’ (HPAT 1996: 64). Therefore, the HPAT report not only produced the incompatibility of homosexual identity to armed service in terms of activities such as voyeurism and the objectification of ‘ordinary’ servicemen in the hybrid work and residential spaces (Goffman 1962) of the armed forces. The report also presented the potential problem of ‘ordinary’ servicemen indulging in sexual activities with acknowledged homosexuals, or being suspected of indulging in sexual liaisons during the many opportunities that would arise in military environments and situations.⁸

Homosexual proximity, homosexual voyeurism and heterosexual scopophobia were among the key justificatory mechanisms deployed by the MoD in various settings including the courts, during the Parliamentary Select Committees and especially in the HPAT report in order to retain the homosexual exclusion policy. Central to this variously deployed homosexual incompatibility discourse is the belief that the suspected or actual presence of a homosexual in the forces’ setting would damage the cohesion of units and the primary groups therein. This disruption of group cohesion would, in turn, result in a decrease in the operational effectiveness of these groups within the services. Cohesion, according to the HPAT report, is ‘a quality that binds together constituent parts thereby providing resilience against dislocation and disruption’ (HPAT 1996: 20). Cohesion, according to military theorists, depends on three main factors: interpersonal attraction, interdependence, and shared attitudes and values (Westbrook 1980: 251). The cohesiveness of primary groups within the armed services was extensively studied during the Second World War.⁹ In these studies it was found that the close personal ties found in groups serve two principal functions in combat motivation: they set and enforced group standards of behaviour, and they supported and sustained individuals in stresses they would otherwise not be able to withstand (Stoufer et al. 1949: 130–1). Rose described the Second World War as ‘a war of morale’ (Rose 1990: x). Understanding the efficiency of a fighting unit, for psychologists and military strategists, became a matter of analysing the bonds between individuals, the relations between internal mental states and external relations with others (Rose 1990: x). According to Rose, ‘solidarity was key here’, the spirit of fighting units was largely dependent, not on hatred of enemies, or external discipline or obeying orders and following rules, but on the informal bonds, loyalties and relationships within groups (1990: 48). This morale, this solidarity, according to Rose, was maintained and produced administratively during the Second World War (1990: 52). Individuals who posed a risk or a threat to unit cohesion, and thus the operational efficiency of the group, were to be eliminated by careful selection and allocation (Rose 1990: 52). One could say that the contemporary practice of administratively discharging homosexuals from the armed services is a demonstration of this administr...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• Introduction
• 1 Military men: queering the homosocial habitus
• 2 Authenticity, evasion and the unknowable homosexual
• 3 Persecution and immutable identities: homosexual refugees
• 4 The fear of ‘homosexual spread’: legislating the heteronormativity of protection 1957–2000
• Conclusion: accommodation trouble, queer legal theory and politics
• Appendix
• Notes
• Bibliography
• Index