Declaration of Dr. Gregory M. Herek
(March 8, 1995)
  United States District Court
Eastern District of New York

Lieutenant Colonel Jane Able, Petty Officer Robert Heigl, First Lieutenant Kenneth Osborn, Sergeant Steven Spencer, Lieutenant Richard von Wohld, and Seaman Werner Zehn,


United States of America and William J. Perry, Secretary of Defense, in his official capacity,

94 Civ. 0974 (EHN)

Index to Affidavit  
  1. Index
  2. Qualifications
  3. Definition of Terms
  4. When and Why People Let Others Know Their Sexual Orientation
  5. Accommodating the Modesty of Heterosexual Servicemembers
  6. Relationship Between Sexual Orientation and Sexual Conduct
  7. Inaccurate Stereotypes About Lesbians and Gay Men

I am a Research Psychologist at the University of California at Davis. I received my Ph.D. in 1983 in Psychology, with an emphasis in Personality and Social Psychology, from the University of California at Davis. In addition, I was a Post-Doctoral Fellow in Social Psychology at Yale University from 1983 to 1985. I have served as a Lecturer and Visiting Assistant Professor at Yale University and as an Assistant Professor at the Graduate Program in Social and Personality Psychology at the City University of New York. I am a fellow of the American Psychological Association and the American Psychological Society; am a member of numerous other professional organizations; have received several professional awards and honors; and have written more than twenty-five articles related to human sexuality, gender, and attitudes, which have been published in various academic journals. A copy of my curriculum vitae is annexed hereto as Exhibit A.
Definition of Terms
The term "sexual orientation" is commonly used to refer to an enduring affectional, erotic, or romantic attraction to individuals of a particular gender. Sexual orientation is usually characterized as homosexual (a primary or exclusive attraction to individuals of one's own gender), heterosexual (a primary or exclusive attraction to individuals of the other gender), or bisexual (a significant degree of attraction to both men and women). The term "sexual orientation" is commonly used to describe at least four distinct concepts: (i) sexual behavior, (ii) psychological attraction, (iii) psychological identities, and (iv) social or cultural roles. Many individuals manifest exclusively heterosexual patterns for all four aspects of sexual orientation; others manifest exclusively homosexual patterns, and others consistently bisexual patterns. Some people, however, manifest a mix of patterns, that is, homosexual in some aspects and heterosexual in others.

Sexual behavior (which also can be called sexual conduct) refers to specific acts that are defined as sexual by the individual or society; such acts typically involve the genitalia but this is not always the case. An individual's sexual behavior does not completely define her or his sexual orientation, and can be inconsistent with the person's psychological attraction, psychological identity, or social role. People with a homosexual orientation (based on their primary psychological attractions, psychological identity, and adherence to a social role) can engage in heterosexual behavior and yet remain homosexual. Similarly, persons with a heterosexual orientation can engage in homosexual acts and still be heterosexual.

Psychological attraction refers to an individual's preference for particular types of experiences or behaviors – what he or she might wish to do if circumstances and the environment permitted. Psychological attraction is not necessarily consistent with sexual behavior. The Kinsey studies (A. Kinsey et al., Sexual Behavior in the Human Male [1948], Sexual Behavior in the Human Female [1953]) demonstrated that a significant number of U.S. citizens in the 1940s and 1950s had consciously experienced both homosexual and heterosexual attractions at some time during their adult lives; the same is most likely true today. Yet, many people with such attractions never engage in homosexual behavior. This inconsistency between attraction and behavior results from a variety of factors, including personal choice (for example, a person chooses celibacy for religious or health reasons) and environmental constraints (for example, the individual fears societal stigma or lacks available partners). Heterosexual attractions are more likely to be acted upon than homosexual attractions because – unlike the latter – they are not stigmatized by society, although cultural norms prescribe appropriate practices and settings for them.

Psychological identity, when used in relation to sexual orientation, refers to an individual's conception of herself or himself as "a homosexual" (or "a gay man" or "a lesbian"), "a bisexual," or "a heterosexual." Knowing that an individual has a homosexual identity (for example, that a man thinks of himself as "gay") does not necessarily permit assumptions about his sexual behavior or even his pattern of psychological attractions. For example, he might engage primarily in heterosexual behavior (i.e., sexual intercourse with women) or might refrain entirely from sexual behavior with either gender. Similarly, a man might think of himself as heterosexual even though he engages in sexual behavior with other men, perhaps even on a regular basis (this pattern has been observed repeatedly in empirical studies of sex-segregated institutions [e.g., prisons] and of AIDS and HIV transmission between men).

Social roles represent the public corollary of psychological identity. They are the rules and expectations according to which people identified with a particular group – heterosexuals, homosexuals, bisexuals – are expected to behave. An individual's public identification with a homosexual role or the gay community does not necessarily provide information about her or his own sexual behaviors, past or present. For example, some people publicly identify themselves as members of the gay community – thereby assuming a homosexual or gay role – even though they have never had sex with someone of their own gender. Included in this category are people who are still in the process of "coming out" (i.e., developing a gay identity and integrating it into their lives) and those who wish to express deeply-held political and moral values (e.g., some feminists).

When and Why People Let Others Know Their Sexual Orientation As I understand it, the military policy on service by lesbians and gay men now requires that a member be discharged (except under narrow circumstances) if he or she says to anyone that he or she is a homosexual or a bisexual, or uses words to the same effect.

Statements that reveal one's sexual orientation to another – directly or indirectly – are very common in casual conversations between acquaintances or strangers, as well as among people who are good friends. Disclosure of information about oneself is an important component of forming and maintaining interpersonal relationships, with more extensive and intimate disclosures characterizing closer relationships. Even casual conversations with strangers often involve exchange of demographic information about oneself, including marital status or, if single, current romantic involvements (e.g., engaged to be married, dating) and living arrangements (e.g., with a partner). Closer relationships are likely to include greater revelations of personal information, including discussions of one's hopes or concerns about a romantic relationship, revelations that one is having sexual relations, and even discussions about the nature of one's sexual behaviors. In most of these discussions, the gender of one's partner (and, consequently, information about one's sexual orientation) is revealed simply through the use of masculine or feminine pronouns.

In addition to indirect revelations, many lesbians and gay men directly disclose their sexual orientation to others. My own empirical research offers evidence relevant to this point. In 1990 and 1991, funded in part by the National Institute of Mental Health, I conducted a national telephone survey of attitudes and opinions. Among other things, we asked heterosexual respondents if they had "any male or female friends, relatives, or close acquaintances who are gay or homosexual." Approximately one-third of them indicated that they knew at least one gay person. A majority of those individuals (61%) had been told directly by at least one friend or relative about the latter's homosexuality. The remainder had learned indirectly (i.e., they guessed or were told by a third party) and subsequently had not directly discussed a friend or relative's homosexuality directly with him or her. When we examined the types of relationships in which direct disclosure was made, we found that such disclosure almost always occurred between close friends and immediate family members, rarely occurred between distant relatives, and occurred slightly more than half the time between acquaintances and casual friends. Because this study was conducted with a nationally representative sample, we can conclude that approximately 61% of American adult heterosexuals who know a gay man or lesbian have been told directly by that person about his or her homosexuality. Such revelations are more likely to occur in close relationships than in distant relationships.

Gay people have various reasons for telling others about their sexual orientation. One of the most important reasons is that they wish to maintain or strengthen their relationship with the other person and would find it difficult to do so while concealing their sexual orientation. Most people experience their sexual orientation (including their sexual attractions and their romantic and affectional relationships) as a central component of their identity. Consistent with this, empirical data show that programs attempting to change an individual's sexual orientation from homosexual to heterosexual have been unsuccessful. Most people – heterosexuals and homosexuals alike – do not feel that they chose their sexual orientation; rather, they typically experience their sexual orientation as simply the way that they are. (See G.M. Herek, "Myths about sexual orientation: A lawyer's guide to social science research," Law & Sexuality, 1991, 1, 133-172.)

Because sexual orientation is so central to one's sense of who one is, keeping it a secret from another person necessarily requires withholding a substantial amount of information about oneself. This information is central to many of the topics that are commonly discussed by good friends or people with a close relationship to each other – the joys and stresses of one's romantic relationships or search for such relationships, feelings of fulfillment or loneliness, mundane and momentous experiences with one's partner. When an individual is actively concealing his or her sexual orientation from another, they cannot have an honest discussion of such matters. As a result, spontaneity and personal disclosure are necessarily limited, which inevitably impoverishes the relationship.

Lesbians and gay men also disclose their sexual orientation to others as a means of coping with stressful events and obtaining social support from others. Research from the field of health psychology suggests that such disclosures may contribute to the physical and psychological health of lesbians and gay men. Deceiving others appears to involve physiological work and may be associated with psychosomatic disease. Conversely, a growing body of empirical data indicates that talking about stressful life experiences can mitigate their impact on emotional and physical health.

In summary, prohibiting lesbians and gay men from making statements that would reveal their sexual orientation requires them to be on constant guard, whether they are engaging in casual interactions or highly personal conversations. It requires in effect that lesbians and gay men refrain from the most ordinary and natural human interactions. Furthermore, it deprives them of access to social support and may be deleterious to their long-term physical and psychological well being.

Accommodating the Modesty of Heterosexual Service Members Human beings are not born with a sense of bodily modesty. Rather, an individual's beliefs and attitudes about the body and privacy develop in the course of socialization by parents, older family members, neighbors, teachers, and other representatives of society. Once learned, bodily modesty needs are not fixed; they change over time and are adapted to an individual's current circumstances. Moreover, there is no reason to believe that such adaptation is psychologically debilitating or physically harmful.

Empirical research has demonstrated that when circumstances do not allow one to adhere to his or her previous standards of bodily modesty, an individual will revise those standards. Various studies have shown, for example, that (i) in a college dormitory where limited bathroom space was shared, residents adapted to the lack of privacy and lost their self-consciousness about being seen naked or engaged in toilet functions; (ii) male prison inmates appear to adapt to having female guards who are able to observe them in states of undress and using the toilet; and (iii) women's initial embarrassment concerning bodily modesty during gynecological examinations appears typically to dissipate after experiencing such exams over time.

Adaptation of bodily modesty needs has also been observed among military personnel. For example, female U.S. military personnel in the Persian Gulf during Operation Desert Storm reported adjusting to frequent intrusions from males and a general lack of privacy for dressing, bathing, and using the latrine. (Schneider, D., & Schneider, C.J., Sound Off! American military women speak out [2d ed. 1992, Paragon House]). They reported that modesty needs often assumed less importance than other needs, such as hygiene. One woman commented, "In the shower right next to you might be a guy, and you just kind of 'Well, we're all grown adults here.' At first it was very awkward, but then as the months went on, 'Oh well, shower time.' If you were on a late mission, you were going to shower."

The belief that heterosexuals would be uncomfortable being around openly gay individuals is frequently based on an extrapolation from the discomfort most men and women feel about being stripped of privacy before the opposite sex. However, this extrapolation is problematic. Whereas males and females are segregated from an early age in public toilets and locker rooms, gay men and women have grown up sharing such facilities with heterosexuals of their same gender. Consequently, they are likely to be habituated to the presence in such settings of one or more individuals whom they might find sexually attractive. Of necessity, they have developed the same behavioral patterns generally used by heterosexuals in such settings (e.g., gaze aversion and other behaviors that have been termed "civil inattention").

Concerns about bodily modesty may be particularly unwarranted in the military context. Concerns about privacy and modesty are not limited to apprehensions about being viewed by a gay person of one's own gender or a heterosexual of the other gender. Military personnel may dislike sharing private settings with lesbians or gay men as part of a general wish not to be viewed in a state of undress or in private functions by anyone, regardless of gender or sexual orientation. Military life, however, has traditionally demanded adaptation from such individuals. Submitting to preinduction examinations and living in barracks, for example, have required that personnel undress in front of others, regardless of their own wish not to do so or their personal standards of bodily modesty. This experience with adapting to reduced privacy is likely to allow many service members to adapt to the presence of openly gay service members. Thus, although encountering openly gay people in such settings might initially be novel to some heterosexuals, they can be reasonably expected to adapt to such experiences in the same way that they have adapted to other aspects of military life.

The historical record should make us deeply skeptical of any claim that – despite the empirical evidence described above – the modesty and sense of privacy of most military personnel are uniquely implicated by allowing open lesbians and gay men to serve, or that because of personal modesty and needs for privacy, heterosexual service members will be unable to adapt to having lesbians and gay men serve. Consider this judgment:

"Enlistment for general service implies that the individual may be sent anywhere – to any ship or station where he is needed. Men on board ship live in particularly close association; in their messes, one man sits beside another; their hammocks or bunks are close together; in their common tasks they work side by side; and in particular tasks such as those of a gun's crew, they form a closely knit, highly coordinated team. How many men would choose, of their own accord, that their closest associates in sleeping quarters, at mess, and in a gun's crew should be homosexual? How many would accept such conditions, if required to do so, without resentment and just as a matter of course? The General Board believes that the answer is `Few, if any,' and further believes that if the issue were forced, there would be a lowering of contentment, teamwork and discipline in the service."

The quote is taken directly from the report of a 1942 General Board commissioned to consider the integration of African Americans in the Navy. In the original quote, the phrase "how many men" (emphasized above) was actually "how many white men." The second phrase emphasized in the above text ("homosexual") was actually "of another race" in the original document. The quote is otherwise unaltered. There is no reason to doubt that this rationale for opposing racial integration seemed like common sense to the members of the Board at the time. Nor is there reason to doubt that some members of the service truly did not want to sleep next to African Americans, and that those beliefs were strongly held. But just as today, the empirical evidence cited above (had it been available then) would have suggested that the military would be able to overcome those beliefs without destroying the effectiveness of the services. The difference today is that we have not only the empirical evidence cited above to tell us that modesty and privacy should be no barrier to ending the ban on service by lesbians and gay men, but also the military's experience with racial integration.

As described above, suggestions that allowing lesbians and gay men to serve on an equal basis might create problems for the modesty and sense of privacy of other members of the service have focused on the attitudes and personal concerns of heterosexual members of the military, not on the behavior of lesbians and gay men. Nevertheless, the record should be clear that no data exist to indicate that lesbians and gay men are less capable than heterosexuals of controlling their sexual or romantic urges, refraining from the abuse of power, or exercising good judgment in handling authority. The existence of nondiscrimination policies concerning sexual orientation in many civilian employment settings indicates civilian employers do not perceive gay supervisors to be any more likely than heterosexuals to sexually harass their subordinates, to show favoritism, or to violate other organizational policies. Even with regard to same-gender sexual assault, the evidence suggests that a great deal of such abuse – perhaps the bulk of it – is perpetrated by heterosexual males rather than gay men or lesbians. (See G.M. Herek, "Sexual Orientation and Military Service: A Social Science Perspective," American Psychologist, 1993, 48, 538-549.)

The Relationship Between Sexual Orientation and Sexual Conduct

The various phenomena that constitute sexual orientation are not necessarily manifested in a consistently heterosexual, homosexual, or bisexual pattern for any particular person. For example, many individuals who consider themselves to be heterosexual nevertheless experience psychological attraction to others of their own gender, and at times engage in sexual behaviors with them. This may be particularly common with individuals who are in their late adolescence or early adulthood, or who are confined with members of the same sex for long periods of time as, for example, in prison. Thus, knowing that a person has identified himself or herself as heterosexual does not necessarily reveal that person's past or present sexual behavior, or that person's desire for future sexual behavior.

Similarly, some individuals who call themselves "gay" or "lesbian" do not, in fact, engage exclusively in sexual behaviors with people of their own gender. As noted above, this is particularly true with individuals who have recently identified themselves as gay and with individuals who live in situations where sexual expression between persons of the same gender is forbidden.

Thus, knowing that a person has identified himself or herself as "gay," "lesbian," or "heterosexual" does not necessarily reveal that person's past, present or future sexual behavior. Particularly where the individuals are young, confined with members of the same sex for long periods, and where there are prohibitions on same gender sexual behavior, such self identification may have little or no connection to behavior.

Moreover, knowing that an individual has engaged in homosexual behavior does not reveal the specific types of sexual practices in which he or she has engaged. Human sexual behavior takes a wide variety of forms. It includes activities in which an individual engages alone and those with one or more other persons. It includes acts that involve penetration with the penis (e.g., vaginal intercourse), the tongue, or fingers, as well as acts that involve no penetration (e.g., masturbation, erotic massage, body rubbing). It may or may not include orgasm.

The phrase "to have sex" may have different meanings for heterosexuals and for gay men. Among heterosexual adults in the United States, vaginal intercourse with orgasm is often regarded as the ultimate outcome of sexual activity. Other sexual acts with a partner – such as mutual masturbation, oral intercourse, and anal intercourse – are often regarded as mere preliminaries to vaginal intercourse (i.e., "foreplay") or alternatives to it (e.g., to prevent pregnancy). Like heterosexuals, gay men display a wide variety of sexual practices. In contrast to heterosexuals, however, gay male culture in the United States does not have a norm that one particular sexual act is the preferred outcome of sexual encounters. Whereas behaviors such as mutual masturbation or body rubbing are regarded by many heterosexuals as foreplay to vaginal sex with orgasm, they are considered by many gay men to be complete and satisfying forms of sexual expression in their own right. Indeed, admonitions to avoid AIDS often encourage gay men to engage in these behaviors because they are incapable of transmitting the human immunodeficiency virus (HIV, the cause of AIDS). Consequently, many sexual encounters between men do not involve oral or anal intercourse. It is not appropriate to assume, therefore, that any given sexual encounter between two men necessarily included oral or anal intercourse.

Inaccurate Stereotypes About Lesbians and Gay Men

Scientific data indicate that gay men and lesbians are no more likely than heterosexuals to manifest psychological disorders. In recognition of these data, the American Psychiatric Association has removed homosexuality from the Diagnostic and Statistical Manual of Mental Disorders, which is the principal classification system of mental illness used in the United States. This decision has received strong support from the American Psychological Association (APA), and from other professional groups with expertise in human behavior and mental health. The APA opposes the ban on military service by homosexual individuals. The official position of the American Psychological Association and the American Psychiatric Association concerning the military policy is also stated in testimony that I provided on behalf of those organizations before the House Armed Services Committee in 1993.

Persons with a homosexual orientation are not more likely than heterosexuals to be security risks. No scientific data indicate that gay people are more likely than heterosexuals to reveal classified information under threat of coercion or blackmail. Nor do data indicate that gay people are less likely than heterosexuals to be trustworthy and respectful of rules and laws. (See G.M. Herek, "Gay People and Government Security Clearances: A Social Science Perspective," American Psychologist, 1990, 45, 1035-1042.) Furthermore, the notion that, within the military, lesbians and gay men pose a security risk appears to have been abandoned several years ago under the Bush Administration. For example, on 31 July 1991, in testimony before the House Budget Committee, then-Secretary of Defense Richard Cheney referred to the policy concerning security clearances as "an old chestnut."

Executed on March 8, 1995.

Abstracts to relevant papers by Dr. Herek
More information about the points raised in this declaration can be found in Out In Force: Sexual Orientation and the Military (University of Chicago Press, 1996).
Judge Nickerson strikes down "Don't Ask, Don't Tell"
Consult the ACLU chronology or fact sheet for the Able case
Get the 1998 report on implementation of the "Don't Ask, Don't Tell" policy from the Servicemembers Legal Defense Network. Their 1997 report is also available.
Return to the military information page
Return to Dr. Herek's biographical sketch
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