TRANSGENDER WARRIORS, PERSONNAE NON GRATA: A REVIEW

KRISTINE W. HOLT

In the fall of 1992, as I was beginning my transition, I befriended a woman of 40-something years from Rhode Island who was also beginning her transition. Gwen had an unusual career, or so I thought. She'd volunteered for military service as a male in the late '60s, had served in Vietnam and in numerous other campaigns throughout the ensuing decades, and had taken a twenty-year retirement in or about 1989, going on six-year reserve status upon discharge. As soon as her formal discharge was completed, she began her transition from male to female, an event she had been planning virtually her whole life. Saddam Hussein had different plans for her, though, and when his troops began marching in the Persian Gulf, Gwen was called out of reserve status. Although she had by that time been living as a woman for over a year, she sheared her locks, put away the prescriptions, and trundled off to the Gulf for a year. When pressed as to why she hadn't challenged her call-up, she replied that she didn't wish to have her discharge status changed, endangering her benefits. She therefore fulfilled her final obligation to Uncle Sam, and subsequently completed a successful, albeit delayed, transition.

Transgendered military personnel are not unheard of, although still relatively rare. It's been suggested that the machismo and brutish culture that accompanies the military lifestyle provides an excellent "mask" for one's transgender inclinations. Nevertheless, most transgendered military personnel await honorable discharge before taking those first steps toward transition.[1] The guaranteed benefits and pension help provide a buffer against the inevitable slings and arrows society casts at transgendered people in general. The issue explored here, however, is how the military deals with transgendered persons lurking in its midst.

The prevailing belief of Joe Lunchbox and his spawn is that transsexuals, transvestites and homosexuals are simply minor variations on the same theme. Indeed, the phenomenon of "drag queens" helps cement this idea in the public mind.[2] While the similarities of all these communities might be politically and socially linked under the umbrella "queer" community, the etiology and goals of each is distinct. Nevertheless, diatribes from proponents of "family values" philosophies and the like tend to lump all queers together for targets of disdain. The courts are more discriminating and genteel, however. So when a court is asked to rule on the discharge of a transgendered serviceperson, it uses rationale tailored specifically to the transgender condition, as distinct from the reasoning used against gay or lesbian servicepeople.

Few cases exist dealing with the discharge of transgendered service personnel. The courts first had the opportunity to rule on the military's policy of denying enlistment to transsexual persons in Doe v. Alexander.[3] The Army defended its policy by arguing that transsexual persons presented a medical problem in that their requirements for hormonal maintenance might not be available at some location where they could be assigned. However, the court declined to reach the merits of the Army's defense in this class action suit because, although the plaintiff had standing to sue, the policy itself was nonreviewable, and thus, nonjusticable.

The courts later did reach the merits of the military's defense in Leyland v. Orr.[4] In Leyland, the appellant was an Air Force Reservist who had been honorably discharged after completing sex change surgery. Her discharge was grounded in psychological and physical unfitness; however, the appellate court found her discharge justified under physical unfitness grounds alone, and thus never reached the question of psychological unfitness.

Jane Anne Leyland was brought before a medical disposition hearing board for evaluation of retention after her sexual reassignment surgery, under Air Force Regulations 160-43, ¶ 5-13b(5), (6) & (15), which require referral to an evaluation board for the medical conditions of bilateral gonadectomy, penile amputation, or "major abnormalities and defects of the genitals such as change of sex, a history thereof, or complications . . . residual to surgical corrections of these conditions." Ms. Leyland argued that, because paragraph 5-1g(5) of the regulations required individualized consideration of every case, a showing on her part that such medical conditions would not interfere with her ability to perform her duties would permit her to stay in the service. The court disagreed, however, and held with the Air Force that some conditions "always require discharge because the particular condition invariably impairs the evaluee's ability to perform."[5] The court grounded its finding on the Air Force's reasoning that "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." There could thus be no exceptions to the medical disqualification of service personnel who undergo sexual reassignment surgery.

The plight of transgendered servicepersons who do not undergo sexual reassignment surgery was later addressed in United States v. Davis.[6] In Davis, an Electrician's Mate Second Class was convicted by court martial of conduct which was "to the prejudice of good order and discipline and of a nature to bring discredit on the Armed Forces." Ms. Davis had received a diagnosis of gender identity disorder by several Navy psychiatrists, and one of the psychiatrists had recommended that she continue receiving treatment for this "condition." Ms. Davis began attending transsexual support groups in and around the Puget Sound area and began cross-dressing occasionally, believing the requirements of therapy demanded it. She was subsequently apprehended twice by shore patrol while cross-dressed, once outside the bachelor enlisted quarters where she lived and once at the shipyard's motion picture exchange. Davis challenged her court martial conviction on the grounds that her conduct was not illegal.

While acknowledging that such conduct was not "unlawful" or "wrongful" if done outside the military milieu, the court found that:

The particular facts and surrounding circumstances recited in the specifications in this case describe conduct on a military installation which virtually always would be prejudicial to good order and discipline and discrediting to the Armed Forces. The fact that there are some conceivable situations -- such as a King Neptune ceremony and Kibuki theater -- were "crossdressing" might not be prejudicial to good order and discipline is not significant. These occasions do not generally occur in or near a barracks or a theatre,[7] the locations described in the specifications.[8]

In response to Davis' argument that the trial court may have found she had been ordered to crossdress, the appeals court stated:

First, there is simply no credible evidence in the record from which the court member could have found that appellant had been ordered to cross-dress under the circumstances charged. At most -- and we view this as extremely unlikely -- the court members could have found that appellant reasonably understood that the Navy psychiatrist, Dr. Massa, had ordered him to continue his therapy. There is no indication in the record, however, that this therapy required him to cross-dress in places such as the exchange theater or the bachelor enlisted quarters. Moreover, the record is devoid of evidence that Dr. Massa reasonably could have been understood as ordering appellant to undergo therapy which would require such activity.[9]

By such means, the military has effectively kept willing transgendered people in transition out of the service. The concept of espirit d'corp was never invoked, as is the case for homosexual enlisted persons.[10] Nevertheless, the ultimate result is the same.

Demagoguery and rabble-rousing use broad brushes as their tools. Law, on the other hand, prides itself on the use of finely crafted arguments and narrow distinctions to meet its goals. The former finds its place in politics, while the latter shines in the courts. In the hand of those who choose to discriminate without cause, though, both are equally effective. Both can be used to deny well-meaning people the opportunity to do what they know is the right thing, for themselves and for their country.

ENDNOTES

1 Gwen informed me that her transsexual support group in Rhode Island included a number of retired military personnel, including a three-star general. Popular trans-myth has it that one of the reasons the military began placing women in more combat positions during the Gulf War was because one particular hot-shot fighter pilot on reserve status had undergone transition and become a woman; her talents were so desired that top brass was willing to change the rules regarding women's duties in order to have her return.

2 "Drag Queens" seem to be a crossover element of both the gay and transgender communities. While most drag queens self identify as gay, their status in the transgender community is less clear. Most transgenders who view the community broadly see the term as inclusive of drag queens. However, some drag queens do not consider themselves transgendered.

3 510 F. Supp. 900 (D. Minn. 1981).

4 828 F.2d 584 (9th Cir. 1987).

5 Id at 586. In a very telling manner, the court analogized Leyland's "condition," i.e., sex change/penile amputation with the "loss of a limb," essential for the performance of duty.

6 26 M.J. 445 (1988). The full caption of the case reads: "United States v. Karen Davis, formerly known as Charles W. Marks." Apparently, the plaintiff made a full transition to female after discharge, although the record is silent on whether she actually had sexual reassignment surgery. The court refers to her in the masculine throughout its opinion, however.

7 Perhaps the court envisioned "street Kibuki"?

8 Id. at 449.

9 Id. at 450. Such a finding flies in the face of the standards of care promulgated by the Harry Benjamin International Gender Dysphoria Association, which mandate that a patient being treated for gender identity disorder leading to sexual reassignment surgery live in as a member of the target sex for a minimum of one year before reassignment.

10 It should also be noted that no purported "don't ask, don't tell" policy exists for transgendered persons in the military.