Cross-Examination: Transgender Personnel in the Armed Forces

BY ALEX CRANSTOUN

The palindrome of blue and pink stripes with a central white line in the transgender flag means that it is impossible to fly the flag incorrectly. This is analogous to the view that there is no right or wrong approach to gender.

The LGBT+ community has struggled to gain the same rights and privileges of the wider cis-gendered population in the United States, and globally. [1] And within this community the transgender population have often been ignored, or overlooked, when lesbian, gay and bisexual advancements have been made. This is particularly true of policy advancements in conservative public institutions such as the military.[2] Often transgender individuals were incorrectly labelled as homosexual or suffering from a mental illness. These labels subjected transgendered individuals to the same bans and criminal offences, but none of the benefits that legal advancements afforded to the homosexual and bisexual communities. This is evident with President Donald Trump’s exclusive ban on transgender individuals serving in the military in any capacity.[3]

Presidential administrations have only approached the specific issue of transgender individuals in the military in the last 10 years. The Clinton Administration attempted to find a compromise between the conservatism of the military and the changing worldview on LGBT+ rights. In 1993 the Clinton Administration implemented ‘the don’t, ask don’t tell’ (DADT) policy for the military.[4] DADT overturned the ban on homosexual and bisexual individuals serving in the military with the condition they did not openly disclose their sexual orientation. This policy overlooked the transgender community, who were still subject to a criminal ban on serving the military established in the 1950s.[5]

Under President Obama, there was an acceleration of social acceptance and a policy of open inclusiveness in the military. A major advancement was the Don’t Ask Don’t Tell Repeal Act of 2010.[6] This Act allowed lesbian, gay and bisexual individuals to serve actively and openly in the military, while still enjoying the same rights and benefits as heterosexual personnel. This repeal was the conclusion of a series of reports and studies illustrating the minimal effect that allowing homosexual and bisexual personnel to serve openly would have on the operations of the military.[7]

The ban allowing transgender individuals to serve openly would not be lifted until 2016 for those already active in the military, and 2017 for those wishing to join the military.[8] This was the most ‘progressive’ stance that the United States military towards transgender rights to date. With the election of President Donald J Trump, the right of transgender individuals to serve in the military would be put in limbo, with transgender personnel left exposed and with uncertain futures.

President Trump in a recent statement via the social media platform Twitter has stated that:[9]

“After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow transgender individuals to serve in any capacity in the US Military.”

The statement by the President was met with shock. Not only for its nonchalant delivery method, but for its basis on already settled issues. President Trump justified the announcement, stating that transgender personnel create unacceptable liabilities for the United States military. Specifically, creating a financial burden from medical costs and by causing a distraction to personnel and a disruption to military operations.[10] Trump’s justifications for reinstating the ban on transgender personnel were considered nonsensical, given the information previously obtained by the military.

In 2015, the United States Department of Defense commissioned an extensive review of policy related to transgender personnel, to assess the effect that allowing transgender individuals to serve openly would have on the military. The subsequent report (RAND Report) identified and addressed three key issues.

Firstly, the healthcare requirements and associated costs for transgender personnel. Secondly, any possible effect on deployment or group cohesion. Lastly, a review of foreign militaries with openly transgender personnel currently serving.[11] Therefore, the RAND report not only resulted in the removal of the ban on transgender personnel in 2016. It also directly addresses the issues identified by President Trump as reasons for transgender exclusion.

The RAND Report estimates the population of transgender individuals serving in the United States military to be 6,630.[12] Based on projected healthcare utilisation data, the report estimates that between 29 and 129 individuals will access transition related healthcare out of the total population of 1,326,273 individuals in the military.[13] This equates increase in spending of between USD 2,400,000 and USD 8,400,000 per annum.[14] For a comparison, a F-35s fighter jet costs USD 91,100,000 per jet, and the United States military has recently purchased ninety F-35s.[15] The increased cost is considered negligible given that the total healthcare spending of the United States Department of Defense is USD 49,300,000,000 per annum.[16]

The report acknowledges the majority of healthcare will take the form of psychological support and hormone treatment rather than surgery.[17] However, the military is in a unique position to provide surgical treatment to transgender individuals who feel it is required. This is because surgeries necessary to physically reassign gender require the same skill set as those used to reconstruct injuries received in combat.[18] For example, penile reconstructions account for approximately 10 per cent of all current reconstructions required as the result of injuries received in combat.[19] This is supplemented by the fact that not all transgender individuals feel that surgery is necessary and would not require the service at all.

The second justification for reinstating the transgender ban is the distraction to personnel and disruption to military operations. The RAND report addresses this issue by assessing the ability of transgender individuals to be deployed and the impact on unit cohesion. The summary of findings concluded that deployment would not be effected, as personnel that opted for surgery could complete the procedure and recover from treatment during annual leave.[20] Personnel who opted for hormone treatment could be deployed as usual.[21]

To assess unit cohesion and disruption, the effect of having openly transgender personnel serve was examined in foreign militaries. Australia, the United Kingdom and Israel reported no effect on readiness, cohesion or operational effectiveness.[22] Canada reported increased operational effectiveness, as the result of personnel developing the skills to deal with challenges and diversity.[23]

Eighteen countries allow transgender personnel to serve openly in the military, including New Zealand.[24] The consensus from a survey of these nations is that resistance to a change in policy is present, but short-lived.[25] Because of increased diversity in the military, personnel are more effective.[26] This is because personnel must adapt their thinking and experience new circumstances. These new skills then translate to the field, where personnel are faced with unfamiliar circumstances and have the ability to adapt more readily.

New Zealand’s own Defence Force “prides itself on being an inclusive and diverse organisation”.[1] It is fully inclusive of LGBT+ personnel and launched its “OverWatch” network some years ago.[2] This network “aims to tackle negative or non-inclusive behaviour against gay and lesbian employees, as well as introducing a culture of positive bystander intervention”. The scheme won a national employment scheme, and in 2014 our Defence Force was ranked the most LGBT+ inclusive armed force in the world.[3] The US was ranked number 40 – even before Trump’s arrival. Members of the Defence Force frequently march in Pride Parades.[4] Although our armed forces will be far from perfect, they are clearly putting in some effort to be inclusive, unlike the US military under Trump.

The content of the RAND Report clearly addresses and negates President Trump’s justifications for reinstating the transgender ban. The fact the report was written in 2016 compounds the surprise regarding the content of President Trump’s justifications. Other political figures have expressed concern and surprise over the content of the President’s announcement and the method of delivery.

Senator John McCain, Chairman of the Senate Armed Services Committee, issued a press release in response to the announcement, expressing disappointment at the method of delivery of the message.[27] McCain also conveyed the opinion that there should be no policy change unless warranted by further study or review via an appropriate government department.[28] He emphasised, anyone who chose to voluntarily join the military should be afforded appropriate respect for their sacrifice.[29] The suggestion of maintaining the status quo until more information was obtained was echoed by the Department of Defense in its statement to the media.[30]

After being consistently ignored by advancements in military policy relating to rights and diversity, transgender personnel are now the hot topic of discussion. A hard-fought battle to gain the some of the rights and privileges enjoyed by the rest of the military has only managed to sustain stability for approximately a year. At present, transgender individuals serving in the military have been left in limbo, by issues that have previously been proven not to be issues at all.

The question is, does a tweet by a President equate to an unwarranted policy change? Or will this issue fade away under more scrutiny? We await President Trump’s next Twitter exchange to find out.

The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.

[1] Cis-gender refers to persons whose sense of personal identity and gender corresponds with their birth sex.

[2] James E Parco, and others “Transgender Military Personnel in the Post-DADT Repeal Era: A Phenomenological Study” (2014) 41 Armed Forces & Society 221 at 222; Michelle Dietert and Dianne Dentice “The Transgender Military Experience: Their Battle for Workplace Rights” (2015) Journal of Workplace Rights 1 at 2.

[3] Donald J Trump “Tweet 5.55 am” (26 July 2017) Twitter <twitter.com/realdonaldtrump/status/890193981585444864>; and Donald J Trump “Tweet 6.04 am” (26 July 2017) Twitter <twitter.com/realdonaldtrump/status/890196164313833472>; and Donald J Trump “Tweet 6.08 am” (26 July 2017) Twitter <twitter.com/realdonaldtrump/status/890197095151546369>

[4]  Don’t Ask Don’t Tell Act 10 USC § 654.

[5] The Uniform Code of Military Conduct, Art 125, 10 USC § 925; 1951 Manual for Courts Martial; Executive Order 10450.

[6] Don’t Ask Don’t Tell Repeal Act of 2010 Pub. L. 111–321, § 2(f)(1)(A), 124 Stat. 3516 (2011) [DADT].

[7] U.S. Department of Defense ‘Support Plan for Implementation. Report of the Comprehensive Review of the Issues Associated with a Repeal of “Don’t Ask, Don’t Tell”’ November 30, 2010.

[8] U.S. Department of Defense Transgender Service Member Policy Implementation Fact Sheet (2016) https://www.defense.gov/Portals/…policy/Transgender-Implementation-Fact-Sheet.pdf; and US Department of Defense Transgender Service in the US Military: an Implementation Handbook (US Department of Defense, Washington DC, 2016) at 40.

[9] Trump, above n 3.

[10] Trump, above n4.

[11] Agnes Gereben Schaefer and others Assessing the Implications of Allowing Transgender Personnel to Serve Openly (RAND Corporation, Santa Monica, 2016) at ix. [RAND Report].

[12] At xi.

[13] At xi.

[14] At xi.

[15] Molly Redden “Trans Healthcare costs are actually tiny proportion of the US military budget” The Guardian (online ed, London, 6 August 2017).

[16] Schaefer, n11 at xii.

[17] At 8.

[18] At 8.

[19] At 8.

[20] At 40-43.

[21] At 40-43.

[22] At 45.

[23] At 45.

[24] At 50.

[25] At 50.

[26] At 60.

[27] John McCain “Transgender Americans in the Military” (press release, 26 July 2017).

[28] At 1.

[29] At 1.

[30] Dana W White “Statement by Chief Pentagon Spokesperson Dana W. White on Transgender Policy” (press release, NR-275-17, 27 July 2017).

New Zealand Defence Forces bibliography

1] “Diversity and Inclusion” (11 January 2017) New Zealand Defence Force http://www.nzdf.mil.nz/families/diversity/default.htm.

[2] Josh Martin “Defence Force rainbow programme wins” (30 August 2013) Stuff http://www.newshub.co.nz/nznews/nz-military-most-tolerant-to-gay-soldiers-2014022109.

[3] “NZ military most tolerant to gay soldiers” (20 February 2014) NewsHub http://www.newshub.co.nz/nznews/nz-military-most-tolerant-to-gay-soldiers-2014022109.

[4] “NZ military most tolerant to gay soldiers”, above n 29.