Transgender People and Active Military Service:

Comparing US Military Policy with Some International Examples

Faith Walker

Pol 1101: Government of the US

Dr. White

27 November 2013

1
Abstract

In the past decade, the LGBT civil rights movement has gained a staggering amount of

momentum. Though once a taboo and illegal piece of American culture, the LGBT community

has faced and continues to face what they view as blockades of discrimination towards full

rights. This discrimination has been applied to marriage, anti-gay laws, the workforce,

government benefits, and even the governments armed forces. The US military itself has faced a

long history of discrimination based on race, gender, and sexuality, including policy

implementations that have segregated, discriminated, and discharged many on this basis

(Ratzenstein & Reppy, 1999). It is no different story for the divisive history between the military

and LGBT community wishing to serve their country. Even after the 2011 repeal of Dont Ask,

Dont Tell (DADT), most people, including many within the LGBT community, were or still

are unaware that the end of DADT did not end the exclusion of transgender people from military

service. When referencing LGBT rights, most choose to ignore transgender rights, which have a

complexity of their own. The military is known for adapting slowly to social change and the

situation for transgender people in the military resembles the situation of lesbians and gays

during the final decade of DADT. However several other countries, including some US allies,

have already addressed or started to address this matter, leading to a need to examine:

Transgender People and Active Military Service: Comparing US Military Policy with Some

International Examples.

Major Players

When considering a public policy issue, it is essential to note the key players involved.

Without the work of interest groups the issue of openly transgender people serving in the US

military would not have been seen as such of an issue. Interest groups, as with most social issues,

recognize and force the governments hand in setting a perceived issue on their agenda. Mara
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Keisling, the executive director of the National Center for Transgender Equality stated: As we

celebrate the end of 'Don't Ask, Don't Tell' on September 20, we also recognize that ending this

terrible law is not enough to secure full LGBT equality in the military, and we are committed to

ensuring that every qualified American who wishes to serve our nation is able to do so (NCTE,

2011). Transgender exclusion from the military has not received the full spotlight from the

LGBT community or the federal government, as both tend to focus more towards the LGB civil

rights agenda, usually forgetting about the multifarious issues transgenders face. While the

seventeen year controversy over DADT educated the public about the realities of life for gays

and lesbians and their ability to serve in the military, the debate over transgender members has

barely begun. Interest groups such as the Servicemen Legal Defense Network and the National

Center for Transgender Equality have proposed their own agendas to modify the military policies

they view as civil rights barriers (explained later in the paper).

However, although military policies prohibit open transgenders from serving, it is in the

hands of the president and those at the Pentagon to influence and create such a policy change the

interest groups push for. The military is often reactive to the orders received from the chain of

command, rather than proactive in its own policy reform. In order for any change to happen, the

president would have to initiate the process along with the backing of Congress. For example,

DADT was put in place and subsequently removed, only through initiation by the president and

approval from Congress (Washington Post, 2011). Although interests group push for policy

change, it is ultimately the presidents decision whether to address transgender military reform as

an issue that infringes on civil rights, rather than maintaining its military policies based on

medical limitations.

LGBT Military Policy

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 There is a long history leading up to the military policy of Dont Ask Dont Tell. One of

the first homosexual military exclusionary policies was up in 1950 when Harry Truman signed

the Uniform Code of Military Justice, which set up grounds for discharge for homosexual service

members (US Congress, 1950). Throughout the 1950s and 1960s, acknowledging homosexual

orientation barred an individual from military service. In 1982, President Ronald Reagan

reaffirmed Trumans Uniform Code of Military Justice with a defense directive stating that

homosexuality is incompatible with military service and that people who engaged in

homosexual acts or stated that they were homosexual or bisexual were to be discharged.

According to a 1992 report by the Government Accounting Office (GAO), nearly 17,000 men

and women were discharged under the category of homosexuality in the 1980s (GAO, 1992).

Later in 1992, legislation to overturn the ban was introduced in the U.S. Congress and

President Bill Clinton promised to lift this ban as part of his political platform, in what became

known as Don't Ask, Don't Tell, Don't Pursue. Under its terms, commanders and other military

officials were not permitted to ask enlisted military to reveal their sexual orientation and if asked,

these soldiers were not required to provide information regarding their sexual orientation.

Despite this, armed forces members were able to be discharged for saying they were lesbian, gay

or bisexual or for saying they planned to engage in homosexual acts and a commanding

official may initiate an investigation into a service members sexual orientation only if the

service member has stated that they are lesbian, gay, or bisexual, have engaged in sexual activity

with someone of the same sex, or attempts to marry someone of the same sex. In addition, anti-

gay harassment (verbal or physical) was not to be tolerated. This was estimated to have cost the

Pentagon nearly $200 million to implement during its first five years (GAO, 2011).

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 In 2008, Barrack Obama promised a full repeal of the law and pledged in his State of the

Union speech to work with Congress to end DADT that year. Two years after the election of

President Obama into office, the House and a Senate committee approved an amendment to the

annual defense spending bill that would end DADT but added a provision that would require that

no change would be executed until the Pentagon would conduct a thorough study. The Palm

Center, a policy institute that studies issues of sexuality and the military, released a study in

September 2012 that found no negative consequences, nor any effect on military effectiveness

from the DADT repeal (Glueck, 2012). Finally on December 18, 2010, the Senate voted 65-31 to

repeal the law, sending a bill to President Obama that would end the 17 year ban on gays

serving openly in the military and would be put in to affect September 2011.

Domestic Transgender Military Policy

Following the repeal of Dont Ask, Dont Tell previously discharged gay and lesbian

service members were provided with the opportunity to re-enlist. But there were other

discriminatory policies in the military that the repeal of DADT did not change. The law banning

people from serving in the military based on sexual orientation was the only thing amended by

DADT and then again by its repeal. The repeal of Dont Ask, Dont Tell marked a new era for

those in the military who wish to serve as openly lesbian, gay, or bisexual, but for those who are

transgender in the military, the policy still applies.

The military bases its ban on transgender enlistment on medical and conduct restrictions,

which place "transsexualism" into a category it calls "psychosexual conditions (Brownell &

Klasfeld, 2013). The U.S. military considers transgender people medically unfit to serve based

on diagnosis of Gender Identity Disorder and/or genital surgery, labeled by the military as

major abnormalities and defects of the genitalia (NCTE, 2011). In addition to medical

regulations, conduct regulations can affect transgender service members. For example, cross-
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dressing and/or violating the binary male-female uniform system can result in punishment under

the Uniform Code of Military Justice. Cross-dressing could violate UCMJ Article 133 (conduct

unbecoming) or Article 134 (General article; to the prejudice of good order and discipline)

(US Congress, 1950). Transgender soldiers and sailors largely remain closeted in the military,

but in a recent survey by the Harvard Kennedy School's LGBTQ Policy Journal, 20 percent of

transgender people contacted said they had served in the militarytwice the rate of the general

population (Herman & Harrison-Quintana, 2012).

Transgender exclusion from the military has been previously backed by case law. The

first such case in which such exclusion was discussed is 1981s Doe v. Alexander (Palm Center,

2007). The Army defended its policy of denying enlistment to transsexual persons, arguing that

transsexuals presented a medical problem in that their requirements for hormone

supplementation might not be available at a location where they could be assigned. Similarly in

the 2007 DeGroat v. Townsend decision by the U.S. Southern District Court in Ohio, Western

Division echoed the decision in Doe v. Alexander, finding Joanne E. Degroat, a member of the

U.S. Armed Forces (USAF) from 1974 to 1989, was medically unfit to serve (DeGroat v.

Townsend, 2007). Major DeGroat was seen attending church in female clothing, and then was

notified that she had to show cause for retention on active duty for substandard performance due

to a failure to show acceptable qualities of leadership required by an officer of her grade, based

on her wearing female clothing on two instances and subjecting herself to public view. Her

separation for service was upheld due to unbecoming conduct for a Major of the USAF.

In Leyland v. Orr, Jane Anne Leyland was honorably discharged from the Air Force

Reserves as being found mentally and physically unfit to serve due to being transsexual and

receiving trans-related medical treatment (Palm Center, 2007). Leylands fitness for duty

6
recommended discharge on the grounds of psychological unsuitability and the Air Force Board

for Correction of Military Records affirmed the discharge on grounds of psychological

unsuitability and physical unfitness. The court ruled that the discharge was well-founded in the

case of physical unfitness and therefore found no reason to rule on the grounds of psychological

unfitness. The courts finding was that some medical conditions always require discharge

because the particular condition invariably impairs the evaluees ability to perform without

dispute [that] transsexualism in which sex reassignment surgery has occurred is such a condition,

because all evaluees in this category have potential health problems which may require medical

care and maintenance not available at all potential places of assignment (Leyland v. Orr, 1987).

It is of interest to note that the court, in rendering its judgment, likened the genital surgery to loss

or amputation of a limb thereby rendering the enlisted person unable to perform the full demands

of soldiering.

Lastly, in 1988s United States v. Davis, the appellant was charged under Article 134 of

the Uniform Code of Military Justice after having several Navy psychiatrists diagnose her with

gender identity disorder and was recommended for continued treatment of the condition (Palm

Center, 2007). The U.S. Court of Military Appeals ruling on the case stated that expressing

gender as ones target sex while on base in a manner as required by the relevant standard of care

virtually always would be prejudicial to good order and discipline and discrediting to the Armed

Forces (Sandeen, 2013). The military services have not in recent years criminalized treatment of

gender dysphoria as was done in United States v. Davis, but as these court rulings indicate, being

diagnosed for gender dysphoriaand being treated for gender dysphoria while serving in the

militaryare reasons for denying entry to transgender people, as well as initiating their

separation from the military services (Sandeen, 2013).

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The Medical Aspect

There are two prominent views that need to be addressed concerning the issues that face

transgenders in the military. While there are those who promote the change of military policies

toward transgender individuals, particularly LGBT interest groups, the military takes a difference

stance. According to the Department of Defense, transgenderism is a medical issue which

warrants discharge from the military; the policy also discharges currently serving personnel if

they admit to, or are discovered to be, transgender. Although there is no law preventing

transgender individuals from serving, being transgender is still grounds for rejection for military

service.

For enlisted service members, Department of Defense Instruction 1332.14 (the Enlisted

Administrative Separations) is the controlling regulation. Waivers of the medical standards are

possible; in particular when the condition will not preclude the satisfactory completion of

training and military duty, however, there has not been any record of any waivers being granted

to permit a transgender person to serve. Each military branch releases its own medical standards

mirroring the DoD Instruction, which also mirror these disqualifiers. The Armys applicable

regulation is Army Regulation 40501, the Standards of Medical Fitness, which states:

A history of, or current manifestations of, personality disorders, disorders of impulse control not

elsewhere classified, transvestism, voyeurism, other paraphilias, or factitious disorders,

psychosexual conditions, transsexual, gender identity disorder to include major abnormalities or

defects of the genitalia such as change of sex or a current attempt to change sex,

hermaphroditism, pseudo hermaphroditism, or pure gonadal dysgenesis or dysfunctional residuals

from surgical correction of these conditions render an individual administratively unfit [to serve].

Another Department of Defense instruction document, DoDI 6130.03, states that the

following exclude one from military service:

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 14: Female Genetalia f: History of major abnormalities or defects of the genitalia including but

not limited to change of sex (P64.5) (CPT 55970, 55980), hermaphroditism,

pseudohermaphroditism, or pure gonadal dysgenesis (752.7).

15: Male Genetalia f: History of major abnormalities or defects of the genitalia including but not

limited to change of sex (P64.5) (CPT 55970, 55980), hermaphroditism, pseudohermaphroditism,

or pure gonadal dysgenesis (752.7).

29.r: Current or history of psychosexual conditions (302) including but not limited to

transexualism (sic), exhibitionism, transvestitism, voyeurism, and other paraphilias.

Under the mental standards in the same regulation, current or history of psychosexual

conditions, including but not limited to transsexualism [and] transvestism is considered

disqualifying. Citations in the medical Instruction refer to the American Psychiatric

Associations (APA) Diagnostic and Statistical Manual, which define sexual and gender identity

disorders.

In past years the psychiatric rationale was that Gender Identity Disorder (GID), as

defined by the Diagnostic and Statistical Manual of Mental Disorders-IV, is a mental disorder,

and therefore disqualified them from entering military service, but it is important to note that as

of May 2013 the APA recently released the DSM-V and has significantly de-pathologized being

transgender and GID has been removed. The APA explicitly stated that, It is important to note

that gender nonconformity is not in itself a mental disorder. The critical element of gender dys-

phoria is the presence of clinically significant distress associated with the condition. Therefore

if a transgender persons ability to function on a day to day basis isnt being affected by their

dysphoria, then there is nothing to diagnose, and hence nothing to report for medical grounds of

rejection. The American Psychiatric Association, the American Psychological Association, the

American Medical Association, and the World Professional Association for Transgender Health

(WPATH) all support removing exclusions for treatment connected to gender dysphoria

9
(Sandeen, 2013). The interest groups have used this new announcement, as yet another reason to

try to put transgender military rights on the policy agenda as a civil rights issue.

The Civil Rights Aspect

With half of the militarys medical argument eliminated through the new DSM journal,

many transgender interest groups have argued the now is the best time to change anti-transgender

military policies citing more reasons than just the fact that transsexuality, in military law, is

treated like a mental disorder or some sort of psychosis. For example, despite the fact that

waivers for being transgender have yet to be granted, waivers for pedophilia, voyeurism, and

bestiality can be granted upon consideration. They also tend to cite that even though new studies

suggest that transgender civilians are twice as likely to enlist, service members face high rates of

job, housing, and medical discrimination (Herman & Quintana, 2012). Breaking down the

responses between transgender service members and transgender civilians, the study found that

the military respondents were more likely to be fired (36 vs. 24 percent), evicted (14 vs. 10

percent), and refused medical treatment (24 vs. 18 percent) than civilians (Brownell & Klasfeld,

2013).

Interests groups go further to suggest agendas that would edit the policies they oppose.

One suggestion is that the military could get rid of all gender-identity-based discharges by

updating its medical classifications in accordance with the APAs mental health guidelines,

which prohibit discrimination based on gender identity or expression. In addition, individual

military departments like the Navy, the Army and the Air Force could also set new guidelines

granting waivers to transgender recruits who have already begun their transition and show no

adverse side effects. The Department of Defense could eliminate transgender status and gender

identity disorder diagnosis as automatic disqualifications from military service and should ensure

10
that medical fitness standards treat transgender service members equally with all other service

members, along with an amendment that should be applied to its Anti-Harassment Action Plan to

include gender identity and expression and should enforce the plan (NCTE, 2011). The

government has not responded to such suggestions.

Foreign Transgender Military Policy

Currently, at least 10 countries permit transgender service in some form: Australia, Belgium,

Canada, the Czech Republic, Israel, the Netherlands, Spain, Sweden, Thailand, United Kingdom,

New Zealand, Norway, and Brazil (SLDN, 2011). Some of these countries have regulations or

formal policies regarding transgender service; others consider transgender applicants and service

members on a case-by-case basis. European countries such as the United Kingdom and Spain

have specific policies put in place to address the matter of transgenders serving in the military. In

1989, Spain previously had restrictions put in place preventing transgenders from serving due to

medical reasons similar to the United States. However, in 2007, after a transsexual known as

Aitor G.R. had her application rejected because of lack of genitalia, the Ministry of Defense

announced that it was revising its policy to allow transgender people to serve in the armed forces

(Govan, 2009). In 2008, the Minister for Defense, Carme Chacn, had announced a modification

of the code on exclusions of personnel for medical reasons. These provisions prevented the

incorporation of men not having a penis, and suffering from the absence, of loss or atrophy of

testicles (Govan, 2009).

Similarly in 2009, a policy had been issued by the British Military titled The Policy for the

Recruitment and Management of Transsexual Personnel, supporting transsexuals in the British

Armed Forces and detailing how to avoid discriminating against people who change sex (Mail

Online, 2009). However it was largely criticized as a waste of money because there are few

11
transgender persons in the British Armed Forces. It admits the incidence of transsexualism in

the general population is comparatively low and it is unlikely commanding officers and line

managers will encounter many transsexual people in the course of their duties. On the other

hand, there is the argument that perhaps there the rare occurrence of transsexuals in the military

is because the military discriminates and harasses them. However, the United Kingdom Armed

Forces directly addressed an issue that has not been fully considered or directly addressed in the

United States Armed Forces.

In Australia, while the United States grapples with the question of allowing openly

transgender soldiers to serve in its armed forces, the Australian forces have removed a final

barrier to admitting sexual minorities into the ranks of its service members by striking down a

ban on transgendered troops. Australia has allowed gays to serve openly since 1992, with the ban

on transgendered soldiers ending on Sept. 13, 2010 by a directive issued by Australian Defense

Force head Angus Houston (Dennett, 2010). The change was implemented as a result of a

transgendered soldier being dismissed from the service. Air Chief Marshall Houston also issued

a directive, telling commanding officers to "manage ADF transgender personnel with fairness,

respect and dignity" and to "ensure all personnel are not subjects to unacceptable behavior

(Dennett, 2010). New policies regarding transgendered service members will be issued in

December.

A US military ally, the Israeli Defense Forces, currently does not consider Gender

Dysphoria to be a disqualifying condition for service, along with other transgender related

medical stipulations. Furthermore, the IDF considers certain transition-specific medical

treatment such as Hormone Replacement Therapy, Sex Reassignment Surgery, and counseling to

be medically necessary for those diagnosed with transsexualism and thus pays for said

12
treatments. The IDF also determines gender specific army regulations (length of service, which

gender to be housed with, whether they are to wear a male or female uniform, etc.) on a case by

case basis for its transgender soldiers (Ginsberg, 2013). However, given that Israeli law makes it

difficult for its transsexuals to begin transition until they reach 18, the draft age, and does not

normally allow for Sex Reassignment Surgery to be performed before the age of 21, no soldier

has yet to first begin treatment for transition and additionally have surgery while serving in the

forces. Furthermore, many draftees diagnosed with Gender Dysphoria can and elect to receive

exemption from military service at their own request.

On the basis of military health insurance, Canadas National Defense Department has been

helping to fund the sex change operations of its service members since 1998 (Revel & Riot,

2010). But now, the Canadian Military has decided to allow its transgendered members to wear

the uniform of their target gender and the policy change has been codified in Canadas National

Defense Manual. Its a forward-thinking policy that makes sure the countrys military observes

the psychological needs of the one or two people who undergo gender transition each year. The

policy says they should wear the uniform of their target gender but must be given privacy and

respect. As an example of this new respectful rule, a person doesnt have to give a reason when

their name is changed on military records. (Revel & Riot, 2010).

Going Forward: Futures?

Discrimination in the US military has remained an issue, since the establishment of a

formal military. The repeal of Dont Ask, Dont Tell does not provide a public policy solution

for the problems transgender service members experience. Although Britain, Israel, Australia,

Spain and Canada allow transgender people to serve in uniform, the U.S. military lacks a clear

and coherent policy and has been known in the past to respond slowly to the social changes

surrounding them (desegregation of armed forces), unless change is forced by the Commander in
13
Chief. Despite medical arguments, several countries have found a way to incorporate open

transgender service within their respective armed forces, going as far as funding sex

reassignment surgery and drafting anti-transgender discrimination procedures. The United States

Armed Forces could follow the route of Spain and Australia, and have a defense directive issued

by the President, forcing military change. On the other hand, it may reference the United

Kingdom as a reason not to implement policies specific to transgenders, due to a chance that it

would be seen as a waste of time and money in the eyes of many.

However, in 2013, the Palm Center was funded $1.35 million to start the Transgender

Military Service Initiative to study transgender service in the US military (Peeples, 2013). This

initiative will be the largest and most comprehensive academic research project ever conducted

on transgender military service. It is worthy to note, that the Palm Center conducted a similar

study regarding the effectiveness of lesbians and gays in the military right before the repeal of

DADT. This study may be one of the many steps needed to answer one of the many questions

concerning transgender service issues in the military, and take an important step towards

determining the need for suggested policy changes.

14
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