A US federal court of appeal has reinstated a lawsuit by a decorated Air Force nurse who is suing after she was discharged for being a lesbian.

Major Margaret Witt’s case is the first time a court has not automatically backed the US military’s argument that gays hurt morale and operations as a good enough reason for dismissal.

The three judges of Ninth Circuit Court of Appeals ruled that the Air Force now has to demonstrate reasons to keep Major Witt from serving.

They did not strike down the Don’t Ask Don’t Tell policy, which is in fact a federal law passed in 1993.

It bars openly gay, bisexual or lesbian people from serving in any of the US Armed Forces and prohibits the military from asking questions about a service member’s sexuality.

Major Witt, who joined up in 1987, tried to sue in 2006.

A district court judge said that a 2003 Supreme Court ruling which struck down Texas’ anti-sodomy laws did not extend to the military’s treatment of gays.

Yesterday the appeals court reinstated her lawsuit.

“When the government attempts to intrude upon the personal and private lives of homosexuals, the government must advance an important governmental interest and the intrusion must be necessary to further that interest,” Judge Ronald M Gould wrote.

Kevin Cathcart, Executive Director at Lambda Legal, said:

“We extend congratulations to Major Margaret Witt and her counsel, the ACLU and James Lobsenz, on today’s Ninth Circuit ruling.

“We are pleased with the decision, which is a step in the right direction towards full equality for LGBT service members in the US armed forces.

“The Air Force now has to demonstrate a very important reason to keep Major Margaret Witt, a model officer and nurse, from serving her country.

“The court held that the military’s Don’t Ask Don’t Tell policy must satisfy a heightened standard of review if it is to bar Major Witt from military service.

“Lambda Legal’s landmark case Lawrence v. Texas (2003) was cited as the rationale to subject the policy to this high level of scrutiny.

“We are hopeful that on remand the district court will agree that allowing Major Witt to serve her country poses no threat to unit cohesion in the armed forces and her sexuality has no bearing on her ability to perform her duties as an officer and nurse.”

Lambda Legal submitted an amicus (friend of the court) brief to the Ninth Circuit Court of Appeals in support of Major Witt.

This latest legal challenge follows numerous attempts to repeal the Don’t Ask Don’t Tell law.

Earlier this month the Chairman of the US Joint Chiefs of Staff said that Congress, and not the military, is responsible for the ban on openly lesbian, gay and bisexual Americans from military service.

Speaking to graduating cadets at West Point military academy, Admiral Mike Mullen said that the Don’t Ask, Don’t Tell policy enacted by Congress in 1993 is a law that the Armed Forces follow.

“Should the law change, the military will carry that out too,” he said.

Under US federal law more than 12,000 LGB men and women have been dismissed.

An estimated 65,000 lesbian and gay service members serve on active duty and in the reserves of the United States military, according to the Servicemembers Legal Defence Network (SLDN), a non-profit legal services, watchdog and policy organisation dedicated to ending discrimination against and harassment of military personnel.

During his Senate confirmation hearing last year, Admiral Mullen told lawmakers:

“I really think it is for the American people to come forward, really through this body, to both debate that policy and make changes, if that’s appropriate.

“I’d love to have Congress make its own decisions with respect to considering repeal.”

The most senior US military veteran in the House of Representatives has called for an end to the ban.

Democrat Congressman Joe Sestak, who served 31 years in the Navy, retiring with the rank of three-star Admiral, is one of seventeen veterans in Congress who want to repeal the Don’t Ask, Don’t Tell law.

Nearly 150 of his Congressional colleagues have lent their support to the Military Readiness Enhancement Act which would repeal that law and allow lesbian, gay and bisexual personnel to serve openly.

In March US Presidential candidate Barack Obama told leading gay publication The Advocate he supports a repeal of the gay ban and is hopeful it can be achieved.

His rival for the Democratic nomination for President, Senator Hillary Clinton, has discussed options to remove Don’t Ask Don’t Tell, which was introduced during her husband Bill Clinton’s Presidency.

“I think there’s increasing recognition within the Armed Forces that this is a counterproductive strategy,” Senator Obama told The Advocate.

“We’re spending large sums of money to kick highly qualified gays or lesbians out of our military, some of whom possess specialties like Arab-language capabilities that we desperately need. That doesn’t make us more safe.”

Polls show that 79% of Americans support allowing gays to serve openly.

For the rest of the countries in the NATO alliance, the claims and counter-claims about unit cohesion and the “influence” of gays on fighting men seem like echoes from another time.

The Dutch lifted their ban on gays in 1974, Australia followed in 1992 and Canada soon after.

In 2008, most of the member nations of NATO have removed their bans.

As US politicians and generals argue about the fairness or the sense of a policy that has been responsible for the discharge of more than 10,000 personnel and has cost American taxpayers more than $363 million (£182.6m), here in the UK the Armed Forces are open and welcoming of lesbian, gay and bisexual people.

The Royal Navy and Royal Air Force are members of the Stonewall Diversity Champions programme, a good practice forum where employers work with Stonewall and each other, to promote lesbian, gay and bisexual equality in the workplace.

“The UK is by far and away the most respected military in the world when it comes to the mindset of the Pentagon,” Professor Aaron Belkin, an academic who is an expert on DADT, told PinkNews.co.uk earlier this year.

“I know in personal conversations with very respected military leaders that they see British experiences as precedent setting and that the incredible progress over here, has already changed a lot of their minds.

“So once that moment arrives the British experiences will need to be studied in greater depth, to get a road map.

“The number of people who either are indifferent to change or prefer change is large, and the willingness of people who prefer change to speak out publicly, that’s been the most visible difference.

“So now it’s not people saying in the hallways, yeah gays should serve, but it’s people willing to stick their neck out.”