Justice for LGBT veterans

14th Dec 2020

‘It is clear to me that in this place, we are good at saying, “Aren’t our veterans brilliant? Don’t we owe them a huge debt?”, but when it comes to doing something about it—something a bit difficult and challenging—everybody runs for the hills. Well, this Government are not going to do that.*’  Jonny Mercer MP, 16 July 2020, House of Commons.

It seems that the above statement of support for veterans should have been marked with an asterisk and the caveat:* unless they are LGBT veterans.

Last year, Joe Ousalice took the Ministry of Defence to court. He wanted to get his Long Service & Good Conduct medal back, the medal the MoD had stripped from him when, in 1995, he had been discharged from the Navy due to his sexuality.  Joe had served in the Falkland Islands, Northern Ireland and the Middle East over an impeccable 17 year career.  The decision to throw him out had a catastrophic effect on his life. He lost his career, his friends and his home. At one point he was homeless. After trying in vain for years to persuade the MoD to restore his medal to him, Joe took them to court.

After initially mounting a very forceful defence, the MoD suddenly agreed to settle Joe’s claim, shortly before the final hearing. In a sudden about-turn, the MoD accepted that its policy had been ‘discriminatory and unjust’. It agreed to return Joe’s medal and wanted to arrange a special ceremony with the Secretary of State for Defence in attendance. Importantly, the MoD also promised to review and amend its policy on the awarding and restoration of medals generally so that other affected LGBT veterans could apply to have them returned too.  The finalised policy was not ready by the time the claim settled, but the MoD promised Joe that it was at an ‘advanced’ stage and it promised to keep Joe informed every 4 months as to its progress.

It has now been more than a year since the claim settled. Despite promising Joe that it would give him regular updates, the MoD has missed every single deadline for doing so and, as of today’s date, the policy remains unchanged and discriminatory.

At his meeting in January 2020 with the Secretary of State, Joe took the opportunity to describe the effect that his dismissal from the Navy had had on his life. He also pointed out that, because he had been reduced in rank just before he was dismissed, the pension he was eventually awarded was significantly less than he should have received.  In answer to Joe, the Secretary of State said that he was in the process of considering how the Government could better address the needs of its LGBT veteran community and he said that one option under consideration was compensation.

On the basis of that indication, Joe wrote to the MoD after the meeting, to ask if it would consider restoring his pension to him. Baroness Goldie, Minister of State in the Lords, eventually replied, making it clear that they would do no such thing. Because Joe’s challenge had been about the medal, not money, she also took the opportunity to suggest that he was somehow going back on his word by asking for his pension money now – something that was deeply hurtful and insulting to Joe.

Joe is just one of many LGBT veterans that have contacted the Centre for Military Justice, seeking advice on whether there is any legal action that can be taken now to make good the damage that has been caused by the MoD’s discriminatory policy. All of these veterans have described the life-long impact that the ban has had.  The public humiliation, the living in fear, the verbal and sometimes physical abuse, being ‘outed’ to friends, family, colleagues and strangers and the financial impact of losing their careers and pensions.

After so many years have passed, in most cases, it is going to be extremely difficult to bring a legal claim for the restoration of a lost pension, earnings or other financial compensation. Many LGBT veterans did not know or understand that they might have had a claim at the time of their dismissal or shortly after the ban was lifted – or if they did, were simply not in a psychologically strong enough place to take on the MoD then.  Each case is different and individual legal advice should be taken, but while legal action may be possible in certain circumstances (such as where there exists today a discriminatory policy that could be challenged), it is true to say that the majority of LGBT veterans that have sought legal advice about their individual treatment decades ago have been told that that they are out of time.

However there is some hope. The fantastic charity Fighting With Pride, created on the 20th anniversary of the lifting of the ban, is working to build capacity for LGBT+ veteran support, to recognise the service of the LGBT veteran community and to help resolve the challenges they face in their lives.  FWP is currently engaging with a number of Government departments, including the MoD, to discuss the ways in which the Government may make amends for its previous discriminatory policies. FWP is impressing on the MoD the need for a comprehensive and meaningful approach to be taken and stressing the need for financial compensation to form part of it.  FWP would welcome contact from anyone who left the Armed Forces on account of the ban.

Some of our LGBT veterans are now getting on in years. Some are getting ill and some are dying. Joe is now suffering ill health – another gentleman contacted us only this week to say that he had now been diagnosed with cancer and feared that he would never get an apology or any redress –  and the widowed partner of a veteran contacted us last month seeking some advice about his late partner’s pension. Time is passing.

When it restored the medal to Joe, an MoD spokesperson said: ‘Back in 1993, because of his sexuality, Mr Ousalice was treated in a way that would not be acceptable today and for that we apologise…We accept our policy in respect of serving homosexuals in the military was wrong, discriminatory and unjust to the individuals involved.”

We urge the Government to publish its updated medals policy without further delay. Inevitably further legal action will follow if it does not.  We also urge them to urgently set up an ex gratia compensation fund to which LGBT veterans may apply for some form of financial recompense. The Govt still has a chance to put its rhetoric into practice and to do the right thing.

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