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Remembering Perry Watkins

The First Gay Service Member
Whose Order of Reinstatement
the US Supreme Court Let Stand

By Michael Bedwell

A number of news reports on the courageous fight and recent exhilarating victory against the Air Force by discharged former Air Force Major Margaret Witt mention that her lead attorney, James Lobsenz, of the ACLU, also represented late Sgt. Perry Watkins. As passing comments go, that is one of the biggest understatements in the entire history of the military ban. Watkins’ 16 years in the Army combined virtually every kind of homophobic experience every other gay servicemember has had this side of WWII’s “queer stockades” and mental hospital wards. It began when Lyndon Johnson was President, and would not end until George Bush père sat in the Oval Office. It was sometimes a comedy, and sometimes a tragedy. It was sometimes even a musical comedy—but it was always, just as the ban itself, nonsensical. That our current government defended Witt’s discharge in much the same way earlier administrations defended Watkins discharge demonstrates that while names, dates, and Parties in power change, bigotry remains evergreen.

Too much happened for anyone not a witness to remotely grasp except through a timeline [which, due to space limitations, still leaves out a great deal of the drama and the folly].

1967: During his draft physical at 19, Perry Watkins checks the box indicating “homosexual tendencies.” Referred to a strangely curious psychiatrist who demands details, Watkins describes his same sex preferences and experiences. The psychiatrist marks him “qualified for admission.”

1968: Watkins is inducted into the Army, but soon told he can’t become a chaplain’s assistant because his record shows he’s said he’s a homosexual. Furious that he’s good enough to be in the Army but not to be a chaplain’s assistant, he demands to be discharged. An investigation begins, he’s sent to another psychiatrist to whom he again acknowledges he’s gay, but he’s not discharged.

A couple of months later, five soldiers try to force him to perform sex on them. He fights them off, but tells his commanding office that if they can’t protect him, he wants out. An investigation ensues—not of his would-be rapists, to whom nothing is done, but of Watkins. The Army’s Criminal Investigation Division demands names of men with whom he’s had sex. He gives them two, both men deny it, and the investigation is dropped “for lack of evidence.”

1970: Completing his two-year hitch, Watkins is given an honorable discharge, his reenlistment code reading, “unknown.”

1971: His request to have it corrected is granted. The Army reclassifies him as “eligible for reentry on active duty,” and he reenlists for three more years. That fall, he begins to perform in drag as “Simone” at military shows and enlisted and NCO clubs across Europe. While Watkins’ gayness is well-known among most he works with, at the time, straight Flip Wilson and his drag character “Geraldine” are huge hits on television. Thus, Watkins’ rave review in no-less than Stars and Stripes is titled, “She Makes the 56th Artillery Brigade Flip.” Entering an Octoberfest beauty pageant, “Simone” wins over eleven “actual” women.

1972: He is denied a security clearance to work on a Pershing missile site on the basis of his statements about being gay during the 1968 CID investigation. Telling them they can’t believe he’d be subject to blackmail given he’s so out, they give him the security clearance.

1974: Completing his second hitch, Watkins is honorably discharged, and allowed to reenlist again.

1975: His application to be a mail clerk requires a check of his records wherein his commander, Capt. Bast, discovers the 1968 CID investigation records. The commander really likes Watkins, and vice-versa, but is a by-the-book guy, and tells him he has to recommend his discharge—even though Watkins had been allowed to stay in the Army after all the previous investigations. Watkins asks to do the paperwork himself to be certain it’s done right, and Bast agrees. They even drive to the discharge hearing together, Watkins betting Bast he’ll win.

Technically a prosecution witness, Bast testifies that Watkins is, "the best clerk I have known," that he did "a fantastic job—excellent," and that Watkins' homosexuality did not affect the company. A second prosecution witness, a sergeant, says that Watkins' homosexuality was well-known but caused no problems or complaints from other soldiers. Deciding to turn the Army’s charade on itself, Watkins said that, despite his 1968 statement, their own agents had determined there was no “proof” he’d engaged in homosexual conduct. The board officers unanimously find that, "Watkins is suitable for retention in the military service," adding, "In view of the findings, the Board recommends that SP5 Perry J. Watkins be retained in the military service because there is no evidence suggesting that his behavior has had either a degrading effect upon unit performance, morale or discipline, or upon his own job performance.”

1977: Watkins is given a “Secret” security clearance classification. Applying for a job with the Nuclear Surety Personnel Reliability Program [the PRP], another security background check results in another official discovery of his statements of homosexuality, and he’s denied the job. His latest commander supports his appeal for reconsideration, writing:

"From daily personal contacts I can attest to the outstanding professional attitude, integrity, and suitability for assignment within the PRP, of SP5 Watkins. In the 6 1/2 months he has been assigned to this unit SP5 Watkins has had no problems what-so-ever in dealing with other assigned members. He has, in fact, become one of our most respected and trusted soldiers, both by his superiors and his subordinates."

1978: Yet another examining Army physician declares that Watkins' homosexuality appeared to cause no problem in his work, the clearance denial is reversed, and he’s hired by the PRP.

1979: Watkins is allowed to reenlist for a third time, yet, soon, he’s being told that his security clearance is being revoked because he’s admitted being gay.

1980: For Watkins, it is not just an issue of fairness, but impacts his ability to be promoted which would reduce his ultimate retirement benefits. He appeals yet admits he made the statement. His security clearance is officially revoked.

A captain being transferred to West Point to teach military law recommends Watkins get an attorney from the ACLU which he’s never heard of. Thus began his history-making relationship with then 28- year old James Lobsenz, just three years out of law school.

1981: Watkins appeals through higher channels, mentioning that he’s secured legal counsel. A decision is postponed while authorities again pursue his discharge for being gay. In addition, the Army begins to play games, denying they’d received his appeal despite a signed receipt. After a second appeal letter is mailed, and months pass without a reply, Lobsenz files a lawsuit in federal district court asking it to order reinstatement of Watkins’ security clearance, prevent his discharge, and order the Army to allow him to reenlist when his current term of service is up. The judge held off pending the Army’s actions.

Meanwhile the Army was denying that trying a second time to discharge him was double jeopardy because, although a legal challenge by Air Force TSgt. Leonard Matlovich had revealed that the military could make exceptions and allow a gay servicemember to stay, a new regulation had eliminated the exception, and Watkins’ 1979 statement that he was gay was considered new evidence since the 1975 attempt to discharge him. But an internal memo between the Army’s general counsel and chief of public affairs reveals that they were very concerned about “unfavorable publicity such as the Air Force received in the Matlovich case.”

Having beaten them once before, and the judge having declared that she could not uphold any discharge without proof of homosexual acts, the Army produces two witnesses against him. The first, accusing him of a vague verbal pass, admits on cross examination that he really didn’t think there was anything to it, and he’d have no problem working with Watkins again.

The second was brought in to testify that Watkins had picked him up hitchhiking and put his hand on his thigh. Watkins denied it, and the witness could not identify him in a lineup as the “black sergeant” who’d made the pass, adding that it really hadn’t bothered him very much regardless of who it was.

But the man’s supervisor is put on the stand and insists that he’d investigated the story, was sure it was Watkins, and claims he’d discussed the witness’s reliability with the witness’s company commander. Problem is that one of the discharge board’s three officers listening is the company commander and recalls no such conversation.

 A lieutenant colonel, a major, and a sergeant major all testify to Watkins’ character, excellence as a soldier, and their willingness to continue to serve with him even if he is gay—which wasn’t “some great discovery” anyway.

In addition, there is proof that Watkins had been practicing for Organization Day ceremony with several thousand other soldiers when he was alleged to be on the road, in a car, touching someone’s thigh.

Finally, the Army prosecutor could only pivot back to Watkins’ original admission of “homosexual tendencies” during his pre-induction physical 14 years before—and plead with the board to think of the innocent and curious young men who could be seduced into homosexuality, and to not “entrust the development of” “17, 18, 19, maybe 20-year old recruits” “who might come under Watkins’ supervision.”

Despite praise of Watkins and discredited witnesses, the board recommended his discharge by a vote of 2-1.

MAY 1982: Before discharge was completed, the federal district court bars it, and, thus, Perry Watkins becomes the first openly gay man who returns to duty by court order.

OCTOBER 1982: Watkins’ term expires, and following up on their cheeky comment to the judge months before, the Army refuses to allow him to reenlist. She keeps her word, too, and enjoins them from such denial. Thus, the Army, albeit this time due to court order, reenlists Watkins for a FOURTH time—noting, of course, that it can be voided later.

While waiting upon the results of their appeal to the Ninth Circuit, he continues to serve, and others in the Army rates his performance and professionalism, whereupon he receives 85 out of 85 possible points which meant perfect scores for “Earns respect, “Integrity, “Loyalty, “Moral Courage, "Self-discipline, “Military Appearance, “Demonstrates Initiative, “Performs under pressure, “Attains results, “Displays sound judgment, “Communicates effectively, and “Develops subordinates,” and a recommendation for promotion.

One evaluator wrote, “SSG Watkins is without exception, one of the finest Personnel Action Center Supervisors I have encountered. … I would gladly welcome another opportunity to serve with him, and firmly believe that he will be an asset to any unit to which he is assigned. SSG Watkins should be selected to attend ANCOC and placed in a Platoon Sergeant position.”

Another: “SSG Watkins' duty performance has been outstanding in every regard. … [His] positive influence has been felt throughout the Battalion and will be sorely missed. SSG Watkins' potential is unlimited. He has consistently demonstrated the capacity to manage numerous complex responsibilities concurrently. He is qualified for promotion now and should be selected for attendance at ANCOES at the earliest opportunity.”

1983: The 9th Circuit reverses the district court’s ruling, saying they had no choice “absent a determination that the regulations were repugnant to the Constitution or to the military's statutory authority.” Just as Margaret Witt would, Watkins has to fight again in district court.

1984: The district court rules against him this time. Watkins is serving again in Germany when he finds out the Army is moving to discharge him. They’re moving so fast, in order to kick him out before Lobsenz secures a restraining order pending a new appeal to the 9th, that his angry supervisor is overheard shouting to a major, “They’re treating him like a goddamn criminal! He hasn’t done anything wrong!”

Quickly flown to Fort Dix, New Jersey, clerks processing his discharge papers refuse to pay him for 40 unused days of leave. He tells them regulations permit tacking on any outstanding leave immediately—but the catch is that, then, official discharge would not take effect until after the 40 days, and Watkins knows that the Pentagon knows that would be ample time for Lobsenz to get a restraining order. One of the clerks calls Washington for advice, calling out a few minutes later: “Tough shit. You lose it!” and after 16 years of exemplary service, the last two as an officially open gay man, Perry Watkins is out on the street. He finds it difficult getting a civilian job, and has to file for bankruptcy, but will still not give up fighting for legal vindication.

1988: A three-judge panel of the 9th Circuit orders Watkins reinstated, thrilling gay rights advocates with the broad scope of their ruling.

“Any attempt to criminalize the status of an individual's sexual orientation would present grave constitutional problems. Even granting special deference to the policy choices of the military, we must reject many of the Army's asserted justifications because they illegitimately cater to private biases. ... We conclude that these regulations, on their face, discriminate against homosexuals on the basis of their sexual orientation. … Under the Army's regulations, ‘homosexuality’, not sexual conduct, is the operative trait for disqualification. … Sexual orientation plainly has no relevance to a person's ‘ability to perform or contribute to society’. Indeed, the Army makes no claim that homosexuality impairs a person's ability to perform military duties. Sergeant Watkins' exemplary record of military service stands as a testament to quite the opposite. Moreover, as the Army itself concluded, there is not a scintilla of evidence that Watkins' avowed homosexuality ‘had either a degrading effect upon unit performance, morale or discipline, or upon his own job performance’. …

[O]ur analysis of the relevant factors in determining whether a given group should be considered a suspect class for the purposes of equal protection doctrine ineluctably leads us to the conclusion that homosexuals constitute such a suspect class. …Having concluded that homosexuals constitute a suspect class, we must subject the Army's regulations facially discriminating against homosexuals to strict scrutiny. Consequently, we may uphold the regulations only if 'necessary to promote a compelling governmental interest’.  …

Today, it is unthinkable that the judiciary would defer to the Army's prior ‘professional’ judgment that black and white soldiers had to be segregated to avoid interracial tensions. Indeed, the Supreme Court has decisively rejected the notion that private prejudice against minorities can ever justify official discrimination, even when those private prejudices create real and legitimate problems. …

We hold that the Army's regulations violate the constitutional guarantee of equal protection of the laws because they discriminate against persons of homosexual orientation, a suspect class, and because the regulations are not necessary to promote a legitimate compelling governmental interest. … [The Army regulations] are constitutionally void on their face.”

Leonard Matlovich tells reporters, “It’s an incredible victory! We all owe Perry Watkins a great deal of gratitude for sticking with this thing and fighting for what he believes. He’s truly a magnificent role model for all of us." Four months later, Watkins will act as an honorary pallbearer at Leonard’s funeral, and speaks at his gravesite:

“Leonard Matlovich embodied the American ideal of heroism. His military career showed exemplary bravery and love of country. His example lets each individual know that they must take a personal stand, with pride and courage, so that the dream we all share will continue to move victoriously forward. Thank you, Leonard. You made a difference.”

1989: Responding to the appeal by the Reagan Administration, the full 9th Circuit Court, while setting aside the historic constitutional opinions in the smaller panel’s 1988 ruling, orders that Watkins reenlistment be allowed to stand out of simple fairness but [in an attitude echoed in the 2008 iteration of the Court when remanding Margaret Witt’s case to the district level, and the district judge’s recent ruling] agrees the Army has failed to show Watkins’ continued service would do any damage to the military’s function.

“The United States Army denied Sgt. Perry J. Watkins reenlistment solely because he is a homosexual. The Army refused to reenlist Watkins, a 14-year veteran, even though he had been completely candid about his homosexuality from the start of his Army career, even though he is in all respects an outstanding soldier, and even though the Army, with full knowledge of his homosexuality, had repeatedly permitted him to reenlist in the past. The Army did so despite its longstanding policy that homosexuality was a nonwaivable disqualification for reenlistment. …

To estop the Army from denying Sgt. Watkins reenlistment on the basis of his homosexuality would not disrupt any important military policies or adversely affect internal military affairs. It would simply require the Army to continue to do what it has repeatedly done for fourteen years with only positive results: reenlist a single soldier with an exceptionally outstanding military record. … The record in the instant case shows that Sgt. Watkins has greatly benefitted the Army, and therefore the country, by his military service. Even the Army's most recent written evaluation of Watkins, completed during the course of this legal action, contains nothing but the highest praise, describing Watkins' duty performance as ‘outstanding in every regard’ and his potential as ‘unlimited’. In addition, Watkin's homosexuality clearly has not hurt the Army in any way. … This is a case where equity cries out and demands that the Army be estopped from refusing to reenlist Watkins on the basis of his homosexuality.”

The court also noted that Watkins had proved in district court that the Army had falsified his records, erasing an earlier entry stating that he was eligible for reenlistment, and replacing it with one saying, “pending discharge,” and asserting that he had been informed of this during a 1981 interview which, in fact, never took place.

NOVEMBER 5, 1990: The United States Supreme Court, responding to the appeal by Bush père’s Solicitor General, the now infamous Kenneth Starr, who more recently has defended Proposition 8, denies certiorari, thus upholding the 9th's finding that Watkins was unfairly discharged.

The notes of Justice Marshall reveal that Watkins almost lost due to the incapacitating stroke of Justice Brennan who would have been expected to support him. Justice Blackmun convinced the court to wait for Brennan’s successor which became Justice Souter. On the third vote, an unusual coalition of Marshall, Stevens, O’Connor, Souter, and Scalia refused to hear the government’s appeal.

After 16 years of fighting for his country, and 9 years fighting his country in court, Perry Watkins had finally won. He chose to savor his victory as a civilian; enjoying their $135,000 settlement, a retroactive promotion to Sgt. 1st Class, and full retirement benefits.

1993: Having continued to educate and lobby for an end to the ban, he was chosen to carry the American flag in the color guard for the 1993 gay march on Washington which he did in full dress uniform.

1996: Watkins is also lost to AIDS, dying in Tacoma, Washington, where he’d first entered the US Army, and where Margaret Witt was ordered reinstated last month. Their shared attorney, James Lobsenz described him as "a very honest guy, a very stubborn guy, and a brave guy." The University of Michigan Law School has a Perry Watkins Fellowship to help its students work on behalf of LGBT causes.

In 1989, Watkins told author and fellow ban victim Mary Ann Humphrey:

“There is absolutely no basis in fact for any of the military’s opposition to gays in the armed forces. When is this ruse going to be exposed as pure bullshit. I hope in my lifetime!"

SOURCES: Conduct Unbecoming, Randy Shilts. Matlovich: The Good Soldier, Mike Hippler. Courting Justice: Gay Men and Lesbians v. the Supreme Court, Joyce Murdoch and Deb Price; My Country, My Right to Serve, Mary Ann Humphrey; Watkins v. United States Army, 541 F.Supp. 249, 259; 551 F.Supp. 212; 721 F.2d 687; 837 F.2d 1428; 847 F.2d 1329; 875 F2d 699.

©  2010 Michael Bedwell; www.leonardmatlovich.com