Abstract

In June 2016, the Secretary of Defense (SECDEF) issued Directive-type Memorandum (DTM) 16-005, "Military Service of Transgender Service Members." This DTM announced that, based on the premise that the "military should be open to all who can meet the rigorous standards for military service and readiness," "transgender individuals shall be allowed to serve in the military." The attachment to the memo declared that servicemembers could no longer be "involuntarily separated, discharged or denied reenlistment or continuation of service, solely on the basis of their gender identity." The core purpose of the new policy was to ensure that transgender persons would be permitted to serve their country in the armed forces to the same extent as all other persons. However, the integration of openly transgender personnel into the military presents many on-the-ground issues that subsequent guidance and policies have striven to address and that commanders and policymakers will need to confront.

Regarding accession into the military by transgender persons (which is to begin in the summer of 2017), DTM 16- 005 states that "gender dysphoria" would remain a disqualifying condition unless the person is certified by a medical provider as having been "stable without clinically significant distress or impairment in social, occupational, or other important areas of functioning for 18 months." In the event the person has been receiving cross-sex hormone therapy or has a history of sex reassignment surgery, a medically-certified 18-month period of stability must also be demonstrated prior to accession. For those transgender persons within the military, the policy indicates that once a servicemember's gender marker is officially changed in the Defense Enrollment Eligibility Reporting System (DEERS), that servicemember "will use those berthing, bathroom, and shower facilities associated with the member's gender marker in DEERS." Importantly, DTM 16-005 directed, "Transgender Service members will be subject to the same standards as any other Service member of the same gender . . " There is some indication that transgender servicemembers will be entitled to government-funded medical care and treatment associated with a gender transition, although requests for particular care from transgender servicemembers will be handled on a case-bycase basis until the Department of Defense (DoD) issues further policy guidance. Finally, DTM 16-005 announces that "discrimination based on gender identity is a form of sex discrimination," which is prohibited under current equal opportunity policies and regulations throughout the military.

In the wake of DTM 16-005 the Service Secretaries have been tasked with identifying all issuances, regulations, and policies that bear on or may be affected by the open service of transgender persons and developing revisions to the same as may be necessary to render them consistent with the new policy. For example, at the time the DoD policy was announced, Army Regulation (AR) 40-501 identified "transexualism" as a medically-disqualifying disorder preventing entry into the Army and could form the basis for separation from the Army, consequences that would be out of step with the new policy.

In response to DTM 16-005, Secretary of the Army Eric Fanning issued Army Directive (Army Dir.) 2016-35, "Army Policy on Military Service of Transgender Soldiers." It echoes the admonitions of DTM 16-005 that transgender Soldiers may serve openly and may not be involuntarily separated or denied reenlistment or continuation of service solely on the basis of gender identity. Additionally, the Army directive affirms that once a Soldier's gender marker is changed in DEERS, "the Soldier will be expected to adhere to Army standards applicable to the preferred gender." Exceptions to policy for trans1t1oning Soldiers are discouraged, but permitted if a Soldier wishes to depart from the Army's standards for their gender marker. The other Service Secretaries have also issued policy guidance for their respective branches, which largely tracks the guidance offered in the Army policy.

One interesting aspect of Army Dir. 2016-35 is that it revises multiple Army regulations, although not to such a degree as one might have expected. In AR 40-501, mentioned above, revisions eliminate transexualism, gender identity issues, and "abnormalities or defects of the genitalia such as change of sex" as disqualifying for service. Army Regulation 135-178 and AR 635-200, which address reserve component and active duty enlisted separations, are revised to eliminate gender dysphoria and "transsexualism/gender transformation" as grounds for separation. Interestingly, "transvestism"-which is a term that refers to cross-dressing-is retained as a condition that warrants separation under paragraph 6-7a of AR 135-178. The Army Command Policy, AR 600-20, is revised to replace references to discrimination based on sex or gender with "sex (including gender identity)." The Army Substance Abuse Program regulation, AR 600-85, is revised as well, now permitting all Soldiers to use wide-mouth collection cups for specimen collection during the urinalysis process rather than only females (as before).

There are many important questions that will arise for commanders and servicemembers who have to operate under this policy, as well as for military policymakers who will have to oversee and further refine the policy as the services proceed with its implementation. These questions include: Who counts as trans gender under the policy and what must they do to come within its ambit? What exactly are the contours of the policy in terms of the rights it provides and the duties it imposes? How are on-the-ground conflicts between the rights and privileges recognized under the policy to be balanced against or reconciled with the rights and privileges that nontransgender servicemembers may have?

For policymakers, the questions are larger: What impact does transgender accommodation have on interests served by the various gender-distinct policies and practices of the military? Are there any limits on transgender accommodation and recognition that are required in view of potential adverse impacts that the policy may have on the rights or interests of non-trans gender servicemembers?

This article will address these questions with the aim of providing commanders, servicemembers, and policymakers with a solid understanding of the new policy and how to navigate the various issues each will face as it is implemented throughout the force.

Document Type

Article

Publication Information

2017 The Army Lawyer 4-17 (2017)

Comments

JAG Corps Professional Bulletin 27-50-17-02

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