Some important progress for our LGBT veterans – but there is so much more to do

15th Feb 2021

In 2019, Joe Ousalice took the Ministry of Defence (MoD) 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 18 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, with photographers. 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. The outcome of that policy was just as important to Joe as the return of his own medal and badges and he was extremely proud at the part his litigation had played in ensuring the policy would be changed.

Today, one year and two months since his claim settled (and having failed to update him as they had promised they would), the MoD has finally announced its new policy:  The policy appears to create 3 broad categories of potential applicants: applicants with convictions for old, now decriminalised offences (consensual sex between men) who can produce a ‘certificate of disregard’ under s92 Protection of Freedoms Act 2012; now deceased people whose families can make an application on their behalf (but not if they were convicted of an old, now decriminalised offence – it seems the policy does not apply to them); and people who were not the subject of a conviction under s92 but who were discharged ‘solely on the basis of their sexuality’.

It is vital that the policy covers not only those who may have old convictions for activities that are no longer criminal (consensual sexual activities between men) who will be able to produce a ‘certificate of disregard’, but, crucially, people like Joe who were not convicted of offences like that, but rather for the more opaque offence of ‘conduct prejudicial to good order and (service) discipline’. It was following his conviction for that offence that Joe was discharged, his sexuality now accepted by the MoD to have ‘played a large part in the level of Naval penalty he received’. We are seeking urgent clarification from the MoD.

At his meeting with the Secretary of State when his medals was restored to him, 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 Govt 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 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 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. The product of their work can undoubtedly be seen in the more progressive noises coming from inside the MoD on this issue today.

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 at the end of last year to say that he had 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 seeking advice about his late partner’s pension. Time is passing and these veterans are growing old.

When it restored the medal to Joe, a 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.” They have reiterated that message alongside the long-awaited medals policy. This is all very welcome indeed.

However, the restoration of medals to Joe and the new policy is just the first in a series of steps that are needed to do right by our LGBT veterans. In particular, we urge the MoD to set up an ex gratia compensation fund to which LGBT veterans may apply for some form of financial recompense.  This will be a crucial part of the MoD taking real responsibility for the historical injustice for which it was responsible.

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