orientation constitutes a genuine and determining occupational requirement, when the
objective is legitimate and the requirement is proportionate”.283
Right to privacy
The prohibition on gays and lesbians serving in the armed forces may also be in contravention of the right to private life, which is protected by both the ICCPR (Art. 17) and the
ECHR. Art. 8 of the ECHR states:
There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others. 284
On the basis of this provision, the European Court of Human Rights ruled that the United
Kingdom’s policy prohibiting homosexuals from serving in the armed forces violated the
principle of respect for private life (see Section 3 of this chapter, “Different Approaches to
the Participation of Lesbians and Gays in the Armed Forces”).
The OSCE has not explicitly affirmed its commitment to end discrimination on the basis
of sexual orientation. Only in the 1995 Ottawa Declaration did the OSCE Parliamentary
Assembly call upon:
participating States to ensure that all persons belonging to different segments of
their populations be accorded equal respect and consideration in their constitutions, legislation and administration and that there be no subordination, explicit
or implied, on the basis of ethnicity, race, colour, language, religion, sex, sexual
orientation, national or social origin or belonging to a minority … .285
Discrimination on the basis of sexual orientation is understood by many participating
States and OSCE institutions to be banned under provisions banning discrimination “on
any ground”.286
3. Different Approaches to the Participation of Lesbians and
Gays in the Armed Forces
Policies and practices regarding lesbians and gays serving in the armed forces vary widely
from country to country. There have also been changes within countries, with many nations relaxing or entirely lifting the ban on gays and lesbians in the armed forces because
of the application of a human rights and equal-opportunities approach to the armed forces
in OSCE participating States.
Three broad policies concerning the presence of gays and lesbians within the military can
be identified:
• Systems in which gays and lesbians are excluded by law and, if found to be serving, can
be legally removed from the service;
283
Ibid., para. 23.
284 The prohibition of discrimination and the right to respect for private and family life specifically within
the military context are reaffirmed in Council of Europe Parliamentary Assembly Recommendation on Human
Rights of Members of the Armed Forces 1742 (2006), paras. 10.1.5 and 10.2.3, available at <http://assembly.coe.
int/Main.asp?link=/Documents/AdoptedText/ta06/EREC1742.htm>.
285 Ottawa Declaration of the OSCE Parliamentary Assembly, 8 July 1995, <http://www.osce.org/documents/
pa/1995/07/171_en.pdf>.
286 See, for example, Copenhagen 1990, para. 5.9.
133
Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel
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