Transgender Military Issues to be Added to SLDN's "Survival Guide"

Transgender issues are set to be included in the next edition of the Servicemembers Legal Defense Network's (SLDN) "Survival Guide," the most comprehensive resource available to service members regarding the U.S. military's "Don't Ask, Don't Tell, Don't Pursue, Don't Harass" policy.

The Survival Guide currently gives detailed information on the rights of service members and what to do a service member is investigated under the Pentagon's gay policy. The guide will be expanded to include the following guidance for transgendered soldiers or prospective enlistees regarding how this policy can affect them:



TRANSGENDER MILITARY ISSUES

The term "transgender" is a broad umbrella under which several different groups of individuals may identify themselves. For the purposes of this guide, three groups - those whose appearance is gender non-conforming, cross-dressers / transvestites, and transsexuals will be discussed because they are the individuals most likely to have difficulties with the military.

Two different situations exist where transgendered individuals may run afoul of military regulations. The first is when attempting to join the military. The second relates to service members already in the military.

Enlistment / Appointment / Commissioning

The Department of Defense sets the criteria, including physical standards, which must be met by all applicants for military service. Every person attempting to join the military must undergo a physical examination as part of the induction process.

The military considers having had any type of gender confirming surgery to be a major genital abnormality or defect, even if there are no complications after surgery. If an individual is at any other stage of transition, or does not plan on having surgery, the military considers transsexuality to be a disqualifying psychiatric condition.

The military will find out about a post-operative transsexual either during the physical exam and history or through the entry-level background security-clearance vestigation. Lying on the form or to the doctor, or omitting the information, could potentially be viewed as a fraudulent enlistment and subject an individual to UCMJ penalties and discharge.

An individual may request a waiver of any condition from the branch that they are attempting to join. Each service sets its own rules regarding whether or not a waiver request is appropriate and whether or not such a request will be approved. NO waivers for transsexualism were requested between 1996 and 2000, the years for which data was available from the Department of Defense.

Currently Serving Members

Gender Non-conforming Service Members - either effeminate males or masculine women - are often perceived as being gay or lesbian by others in the military because the distinction between gender identity and sexual orientation is not understood. Because of this mis-understanding, these service members are often subject to anti-gay harassment. In the case of women who are told to appear more feminine, this is also potentially a form of sexual harassment.

Service members being harassed should be able to report the harassment to their chain of command through channels designated by each service. In reporting harassment, service members should NOT disclose their sexual orientation but rather should state that they are being harassed based on "perceived sexual orientation."

Every service member must abide by service regulations that address uniform and grooming standards.

Transvestitism or Cross dressing is addressed in regulations concerning conduct and separation proceedings. Each service has different regulations and the specific manner of addressing the situation will depend on the service member's status as an enlisted or officer, and by which component they are in, active duty, reserve, or National Guard. In some of the regulations, transvestitism is considered to be misconduct / sexual perversion / sexual deviation that subjects the member to potential UCMJ action and subsequent discharge.

While not a per se violation of either UCMJ Article 133 (Conduct Unbecoming) or Article 134 (General Article pertaining to good order and discipline), cross-dressing can be the basis for judicial, non-judicial, or administrative separation proceedings. The service is to look at various factors in deciding if cross-dressing by a member is prejudicial to good order and discipline: 1) the time, 2) the place, 3) the circumstances, and 4) the purpose for the cross-dressing.[i]

The bottom line is that, as a practical matter, any cross-dressing, even in the context of medical treatment as part of the standard of care for gender dysphoria or gender identity disorder, will most likely be considered by the military to be prejudicial to good order and discipline.

Transsexuals who are thinking about coming out or starting their transition while in the military should be aware of a strong bias against recognizing the standard of care involving hormone therapy, living in the appropriate gender, and surgery. The military medical system does not support the Harry Benjamin standard of care and will not provide the medical support necessary for transitioning service members. Generally, the services apply physical standards that make transsexualism a disqualifying condition which impacts on military fitness and a basis for a non-medical discharge.

Service members who seek psychological or medical treatment through the military should know that conversations with military health-care providers are not confidential and any statement concerning being transsexual can, and most likely will, be reported to their commands and separation proceedings begun. For those members who seek treatment from civilian providers, be aware that each service has regulations governing military members seeking outside health care and may include reporting requirements. Failure to abide by these regulations could potentially place a member at risk for UCMJ action. Further, cross-dressing as part of the transition process, even when prescribed by competent medical providers, may be considered a violation of the UCMJ and can potentially be prosecuted at court-martial.

Because the potential exists for the military to apply the rules of the homosexual conduct policy to transsexual members, it is important to not make any statements about sexual conduct, even to military health care providers. For example, the military would view a pre-operative male-to-female transsexual, self-described as a heterosexual female, having sexual relations with males to be committing homosexual acts subject to administrative and disciplinary proceedings.

While anecdotal stories of individuals who have transitioned while in the reserves and were allowed to remain in the military have been heard, SLDN has not document any case where a known transsexual has been allowed to continue in the service.

The best practical advice for a service member who is planning on transitioning is delay the process until after being discharged from the military.

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[i] See United States v. Guerrero, 33 M.J. 295, 298 (C.M.A. 1991).