FBI Policy on Homosexuals at Issue in Ex-Agent’s Suit : Rights: A pretrial opinion states there is evidence of bias by the bureau. Agency cites security concerns.

The voice broke with tension. Calling from a public telephone booth, the gay FBI agent fretted about being fired. Other gay agents had lost their jobs once the bureau discovered their homosexuality.

“I didn’t sleep at all last night,” the agent said. “I’m just so damn nervous I can’t tell you. . . . I have a completely double life.”

The agent, who fears discovery if described in detail, has reason to be anxious. Agent Frank Buttino, a 20-year FBI veteran, was fired after the bureau learned of his homosexuality, and other gay and lesbian FBI employees have resigned under pressure. The FBI said in court papers that it considers homosexuality a potential security concern and that homosexuality makes it “significantly more difficult to be hired.”

Trying to overturn the FBI’s policies on homosexuality, Buttino has filed a class action lawsuit here that, if successful, could bring many gay agents out of the closet.

The suit is one of several gay rights cases pending in the federal courts, where employment barriers for gays in the military and sensitive federal law enforcement agencies are being challenged. Though the challenges face major hurdles, some legal analysts say the courts are becoming increasingly more receptive to them.

“There is a surprising and mild trend (in which courts are saying) the reasons for discrimination are prejudice and hatred,” said University of Chicago law professor Cass Sunstein, “and the government can’t point to neutral, legitimate reasons to discriminate against homosexuals.”

Courts have held that discrimination by the federal government against gays and lesbians must have a rational basis, and have ruled that security considerations met that test.

By contrast, courts almost never consider it valid to discriminate on the basis of race, and to a lesser degree, on gender. Gay rights lawyers are trying to win for gays the greater protections now reserved for race and gender.

Judges are beginning to question whether the federal government’s stated reasons for discriminating against gays are rational. A panel of the U.S. Court of Appeals in Washington held recently that the military cannot ban someone because of his or her sexual orientation alone, a decision that may be appealed.

In the FBI case in San Francisco, U.S. District Judge Saundra Brown Armstrong wrote in a pretrial opinion that there is ample evidence of discrimination by the bureau.

Her opinion allowing the Buttino lawsuit to go to trial questioned “the rationality of a policy that punishes gay employees for being less than candid about their homosexuality, when it is undisputed that until at least very recently . . . the FBI would clearly have purged any employee for being candid about his homosexuality.”

Buttino, 48, filed the lawsuit after the FBI revoked his security clearance, costing him his job.

“I really loved being an FBI agent,” Buttino said. “It’s a wonderful way of serving the country. It is an excellent organization. Unfortunately, some people in a position of power are bigoted against gay people.”

As an FBI agent, the San Diego resident handled undercover, foreign counterintelligence, organized crime, narcotic and terrorism investigations, winning “excellent” or “superior” performance evaluations and several commendations.

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But the FBI learned through an anonymous letter in 1988 that he is gay and accused him of being deceitful and uncooperative about the source of the letter and his homosexual friends. The bureau said he had been involved in what it called a “secret homosexual society.”

The FBI contended that it fired Buttino not because of his sexual orientation but because he lacked candor, did not cooperate in the investigation of the source of the letter, displayed poor judgment, and made himself vulnerable to coercion. The bureau also noted that he had used FBI resources for personal reasons.

Enclosed in the anonymous letter was a note Buttino had written to a man proposing “erotic, fun-style wrestling.” The former agent initially lied under oath that he had written the letter. He later admitted his homosexuality and that he had checked driver’s licenses and criminal records trying to discover the identity of the informant.

He also submitted to a series of polygraph tests during which he was asked intimate details about his sex life, the names of other gay men and women in the FBI, and the names of his gay friends.

In court documents, the FBI argues that even if discrimination influences an employment decision, an employee may not be entitled to his job because of other factors that justified his termination.

But Buttino maintains that heterosexual agents have not lost their jobs for similar and even worse offenses and contends that he was fired because he is gay.

“The evidence that the FBI has discriminated in a systematic way is very, very strong,” said Los Angeles attorney Michael Fitzgerald, one of Buttino’s lawyers.

Since filing the lawsuit, Buttino said he has been contacted by gay and lesbian employees of the CIA, Secret Service, U.S. Marshal’s Service and Immigration and Naturalization Service.

“They all say to a person that their agencies discriminate just as much as the FBI does,” he said.

Buttino said he admitted to himself that he was gay five years after joining the FBI. He avoided office parties and sometimes hinted to colleagues of a girlfriend.

He said he met men through personal advertisements he placed and answered under a pseudonym in gay publications. He never identified himself as an FBI agent to anyone other than his closest friends, Buttino said.

The FBI has allowed one agent and four employees discovered to be gay to remain in the bureau since the lawsuit was filed. Buttino believes they kept their jobs only because of his lawsuit, not because of changing attitudes and greater sensitivity by the FBI. He said none are openly gay.

FBI spokesman Michael Kortan said he did not know if the FBI has any openly gay employees. “Our policy is we don’t discriminate in hiring or conditions of employment.”

In response to questions from Buttino’s attorneys, the bureau has said homosexual conduct poses concerns about the potential for “unlawful” activities--several states have anti-sodomy laws--and security lapses.

Although some state laws apply to sodomy and oral sex between heterosexuals as well as homosexuals, the FBI said it considers homosexual conduct a “significant factor” in hiring and retention decisions.

Dana Tillson, 32, contends that her homosexuality was the only factor considered by the FBI in rejecting her as an applicant. She is cooperating with Buttino’s attorneys.

Tillson, a San Francisco private investigator, applied to become an FBI agent in 1987. She said she scored extremely well in bureau examinations and received strong encouragement until a background investigation discovered that she is a lesbian. “They stopped talking to me,” Tillson said.

Later, FBI agents asked her extensive questions about her sexual behavior, including whether she had ever engaged in oral sex with another woman. She received a standard rejection letter saying she was not competitive with other applicants.

The Berkeley resident had long wanted to be an FBI agent--she grew up in a military family--and her rejection by the bureau stung.

“It was the first time a barrier was placed in front of me that I had no control over,” she said. If Buttino wins the lawsuit, she said, the FBI will have to reconsider her application.

A former FBI photographic technician had a similar experience. After seven years with the FBI, he allowed his name to be used as a reference for a gay friend who had applied to be an agent.

The FBI learned that the applicant was gay and, because of his association with the technician, suspected that the employee might also be gay. The bureau questioned him about his sexuality, and he replied that he was gay but celibate.

“They brought up the part about being blackmailed,” he said. “I said I couldn’t be blackmailed because all my friends and my family know.”

During a polygraph examination, he admitted that he kissed and hugged other men and had sex with one man during the time he had said he was celibate. He said he had forgotten about the incident when he was first interviewed. He also was asked specific questions about his sexual conduct, including how often he masturbated.

Finally, he said, he was told he could either resign quietly or be suspended and eventually fired. “They make you feel like some sort of subhuman,” he said.

He now works as a secretary for a doctor in the South. He said his employer probably assumes that he is gay, but he asked that he not be identified by name just in case his homosexuality could become an issue.

“I don’t want the same thing to happen again,” said the 32-year-old man. “If it happened once, it could happen again.”

For Buttino, the loss of his job has been cushioned by the ease he now feels about being openly gay. His trial could begin next week.

“I can be honest about who I am,” Buttino said. “I have reconnected with my family and friends. It is much easier living an open life than a closeted one--except for losing my job.”