Should Individuals Who Identify as Transgender Be Permitted to Serve in the Military?
By Peter Sprigg
On June 30, 2016, Secretary of Defense Ash Carter announced that effective the next day, July 1, “transgender Service members may serve openly, and they can no longer be discharged or otherwise separated from the military solely for being transgender individuals.”
While this policy applies to existing Service members, Secretary Carter also announced that by July 1, 2017, “the services will begin allowing transgender individuals to join the armed forces, assuming they meet accession standards.” They will also be eligible for admission to service academies, ROTC, “or any other accession program.”1 The announcement was the (delayed) culmination of a process begun a year earlier, in July 2015, when Carter issued a statement announcing formation of “a working group to study over the next six months the policy and readiness implications of welcoming transgender persons to serve openly.”2
Previous policy contained in regulations at least as early as the 1980s did not permit persons who identify as transgender to serve in the U.S. military. A Department of Defense Instruction regarding “Medical Standards,” listed a “[h]istory of major abnormalities or defects of the genitalia such as change of sex” as a disqualifying physical condition.3 In 1981, a U.S. District Court upheld the rejection of an Army Reserve officer, under what was then Army Reg. 40-501, Sec. 2-14(s), a male applicant who had undergone sex reassignment surgery and sought acceptance as female. The court accepted the Army’s defense of this regulation, which was justified by the concern “that transsexuals would require medical maintenance . . . and that the army would have to acquire the facilities and expertise to treat the endocrinological complications which may stem from the hormone therapy”—factors that “could cause plaintiff to lose excessive duty time and impair [the] ability to serve in all corners of the globe.”4
Under the same Department of Defense Instruction cited above, under the heading of “Learning, Psychiatric, and Behavioral,” conditions that are disqualifying were, “Current or history of psychosexual conditions … including but not limited to transsexualism … [and] transvestitism.”5 While the evolution of this disqualification on psychological grounds has proven more difficult to track, an Air Force physician wrote in a journal article in 1988 that transgender “patients are diagnosed with personality disorders . . . and administratively discharged as ‘unadaptable to military service.’”6 Furthermore, an opinion of the Judge Advocate General of the Air Force in 1989 upheld the recommendation of a Board of Inquiry that a male officer who on multiple occasions “attired himself in female clothing and subjected himself to public view” should be discharged on grounds that he “failed to show acceptable qualities of leadership.”7
Finally, the military had been barred from providing or paying for medical care related to gender reassignment. The Policy Manual for the military’s health care system (TRICARE) had a provision forbidding coverage for “[s]ervices and supplies related to transsexualism or such other conditions as gender dysphoria (including, but not limited to, intersex surgery, psychotherapy, and prescription drugs).”8 While all of the provisions above can be changed through executive action alone, one remaining restriction that is statutory forbids TRICARE payments for “surgery which improves physical appearance but is not expected to significantly restore functions (including … sex gender changes).”9 This was enacted in 1984 as part of the Department of Defense Authorization Act for 1985.10 However, this restriction appears in a part of the U.S. Code (10 U.S.C. 1079) dealing with “medical care for spouses and children,” and therefore does not serve to bar the provision of such services to military personnel on active duty.
The 1993 law which had codified the longstanding ban on military service by persons who engage in homosexual acts (commonly but inaccurately referred to as “Don’t Ask, Don’t Tell”) did not say anything explicitly about “gender identity.” The 2010 bill overturning the 1993 law also said nothing about “gender identity.” However, the activists who pushed to allow homosexual conduct and openly self-identifying homosexuals in the military were at the same time declaring that they supported “the right of transgender people to serve openly,” stating, “We are building the arguments—based on modern medicine and mental health care.”11 Previously, a service member who cross-dressed would be in violation of dress and grooming standards, and a person who sought sex-change surgery could be discharged. However, overturning the law on homosexuality in the armed forces made it easier for individuals who identify as transgender to argue that they should not be discharged simply because of their self-perceived “gender identity.”
The arguments that transgender activists relied on were crafted by a handful of well-funded LGBT think tanks.12 In August 2013, The Williams Institute, in partnership with the National Gay and Lesbian Task Force, released a “National Transgender Discrimination Survey,” in which service members who identify as transgender and veterans reported on “issues in … accessing military health care, and experiences of discrimination.”13 In March 2014, a private, non-governmental “Transgender Military Service Commission,” headed by former U.S. Surgeon General Joycelyn Elders, released a report through the pro-LGBT think tank the Palm Center. It claimed that “there is no compelling medical rationale for banning transgender military service.”14
In February 2016, however, the Defense Department issued a proposed rule which would “remove the categorical exclusion on treatment of gender dysphoria” and instead “permit coverage of all non-surgical medically necessary and appropriate care in the treatment of gender dysphoria”—thus opening the door, for example, to taxpayer-funded hormone treatments for those undergoing “gender transition.”15 The Defense Department’s website now features an entire page devoted to “Policy Highlights” and related resources and links regarding the transgender policy.16 The Washington Times drew attention17 to one of these documents, a DoD Instruction on “In-Service Transition for Transgender Service Members.”18 This 18-page document requires the military to provide “all medically necessary care and treatment” to facilitate the “gender transition” of service members (although actual gender reassignment surgery cannot be included unless Congress repeals the 1984 statutory provision mentioned above).19 It also reveals (sometimes only implicitly) some of the tensions and difficulties involved in allowing military service by individuals who identify as transgender.
For example, it acknowledges that transgender status may constitute “a medical condition that may limit their performance of official duties,” and that it may render a service member “non-deployable.” It may even require a leave of absence. Standards that have been developed for the process of “gender transition” normally require a period of “Real Life Experience” (RLE), living and working in the social role of the intended gender, prior to final medical or legal action to adopt the new “gender identity” permanently. However, DoD notes that “consistent application of military standards will normally require that RLE occur in an off-duty status and away from the Service member’s place of duty.”
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