Issues of service in the United States Military

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The United States military's long standing employment policy of discriminating against transsexual individuals is somewhat ironic insofar as the federal government is generally regarded as being in the fore-front of liberal, nondiscriminatory employment policies. Present military regulations, however, bar appointment, enlistment, and induction of those individuals who have undergone sex reassignment and disclosure of one's desire for sex reassignment can be grounds for immediate dismissal.

This discrimination has particularly far reaching effects because a transsexual person denied appointment, enlistment, or induction into, or dismissal from, the military for transsexualism can encounter severe problems in subsequently locating employment in the private sector. It has, in effect, the potential for fixing upon the transsexual "an official defamation of character."

Additionally, it should be noted, that service members becoming romantically involved with transsexual individuals, are subject to potential dismissal. The effect of such a dismissal could, potentially, be no less damaging than a dismissal for transsexualism.

Appointment, Enlistment, and Induction

The specific disqualifying regulation, common to all service branches, which bars appointment, enlistment, and induction of those individuals who have undergone sex reassignment, reads:

2–14. Genitalia
a. Female genitalia.
(1) Current or history of abnormal uterine bleeding (626.2), including, but not limited to menorrhagia, metrorrhagia, or polymenorrhea, is disqualifying.
(2) Current unexplained amenorrhea (626.0) is disqualifying.
(3) Current or history of dysmenorrhea (625.3) that is incapacitating to a degree recurrently necessitating absences of more than a few hours from routine activities is disqualifying.
(4) Current or history of endometriosis (617) is disqualifying.
(5) History of major abnormalities or defects of the genitalia such as change of sex (P64.5), hermaphroditism, pseudohermaphroditism, or pure gonadal dysgenesis (752.7) or dysfunctional residuals from surgical correction of these conditions is disqualifying.

b. Male genitalia.
(1) Current absence of one or both testicles, either congenital (752.89) or undescended (752.51) is disqualifying.
...
(5) History of penis amputation (878.0) is disqualifying.
...
d. History of major abnormalities or defects of the genitalia, such as a change of sex (P64.5), hermaphroditism, pseudohermaphroditism, or pure gonadal dysgenesis (752.7) or dysfunctional residuals from surgical correction of these conditions is disqualifying.

Discharge, Dismissal, Separation

There are no specific regulations that require the immediate discharge, dismissal, or separation of a service member seeking sex reassignment. The vagueness of military regulations utilized in separating service personnel, however, permits easy discharge, dismissal, or separation without cause, especially in the case of service personnel suffering from gender dysphoria syndrome-i.e. transsexualism-or sexually or romantically involved with a transsexual.

The specific disqualifying regulation reads:

3–35. Personality, psychosexual conditions, transsexual, gender identity, exhibitionism, transvestism, voyeurism, other paraphilias, or factitious disorders; disorders of impulse control not elsewhere classified
a. 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, pseudohermaphroditism, or pure gonadal dysgenesis or dysfunctional residuals from surgical correction of these conditions render an individual administratively unfit.
b. These conditions render an individual administratively unfit rather than unfit because of physical illness or medical disability. These conditions will be dealt with through administrative channels, including AR 135–175, AR 135–178, AR 635–200, or AR 600–8–24.

Consequently, completion of the service contract, without disclosure of one's transsexual feelings, or feelings towards a transsexual, may gain the service member an honorable discharge assignment of an "eligible for enlistment" reenlistment code. An "ineligible for enlistment" reenlistment code can be just as damaging to the individual as a less than honorable discharge.

Boards for the Review of Discharges or Dismissals

The Servicemen's Readjustment Act of 1944, Section 301, as amended, now Title 10 United States Code, Section 1553, directs the Secretary of each military department and the United States Coast Guard, when it is not operating as a service of the Navy, to establish boards for the review of discharges and dismissals of military personnel.

These boards, operating under rules and regulations issued by the individual Secretaries, are authorized to review either on their own motion or upon request the type of nature of discharge or dismissal of former members of the service, except a discharge or dismissal by reason of the sentence of a general court martial. The scope of their [the board] review is to determine whether, under reasonable standards of Air Force, Army, Coast Guard, or Navy regulations and discipline, the type and nature of the discharge or dismissal should be changed, corrected, or modified; and if so, to decide what change, correction, or modification should be made.

The boards have no authority to revoke any discharge or dismissal, to reinstate any person in the military service subsequent to discharge or dismissal, or to recall any person to active duty. Neither do they have any authority to waive discharges to permit enlistment in any of the Armed Forces; to cancel enlistment contracts; to change, correct, or modify any document, other than the discharge, from or to physical disability; or to determine eligibility for veteran's benefits.

The boards may record a recommendation for reenlistment. This recommendation, however, is not binding and Secretarial approval of the board's decision will not constitute endorsement of its recommendation for reenlistment unless so stated by the Secretary. Application for review of a discharge or dismissal must be made on DD Form 293, and must be submitted within 15 years of discharge or dismissal. Current editions of DD Form 293 may be obtained from the Veterans Administration, or by writing the appropriate Board of Review of Discharge or Dismissal.

Boards for the Correction of Military or Naval Records

Public Law 601, 79th Congress, Section 131, the Legislative Reorganization Act of 1946, provides that no private bill or resolution and no amendment to any bill or resolution, authorizing or directing the correction of military or naval records shall be received or considered in either the Senate or House of Representatives. Section 207 of this same Act, as amended (now Title 10, United States Code, Section 1552), however, authorized the correction of military and naval records through boards of civilians established by the Secretaries of each service branch.

The boards may correct any record of their respective service when it is necessary to correct an error or remove an injustice. Further, under this Act, the Secretary of the service branch is empowered to act on dishonorable discharges issued as a sentence of a general court martial. Application for correction of a military or naval record must be submitted on DD Form 149 and must be submitted within three years of discovery of the error or injustice. Current editions of DD Form 149 may be obtained from the Veterans Administration, or by writing the appropriate Board for Correction of Military or Naval Records.

Judicial Response

The medical and constitutional validity of AR 40-501, paragraph 2-14s, was first challenged in the Federal court system in 1978. The initial complaint, cited as Clark v. Brown, et. al. was filed in the U.S. District Court for the Central District of California. The plaintiff, a veteran of 17 years (as a male) U.S. Navy, U.S. Naval Reserve and 22 months (as a female) U.S. Army Reserve service, filed suit alleging a violation of her right to due process and equal protection. The suit was dismissed without prejudice and findings.

The plaintiff subsequently filed a series of in pro per administrative appeals with the Navy Discharge Review Board, the Board for Correction of Naval Records, the Merit System Protection Board, and the Army Board for Correction of Military Records. In mid-1981, the Army Board for Correction of Military Records ruled in favor of the plaintiff, finding that an injustice had occurred, that the plaintiff was entitled to credit for military time served and a honorable discharge. The Board refused to reinstate the plaintiff, however.

Following the Board's finding, in favor of the plaintiff, the ACLU Foundation of Southern California, filed a revised complaint with the U. S. Court of Claims. The revised complaint, cited as Clark v. United States, again challenged the medical and constitutional validity of the preceding regulation, as well as the constitutional validity of a Navy assigned RE-4 (Ineligible for Enlistment) reenlistment code. Prior to setting a date for hearing, however, the Army offered to settle and plaintiff accepted in order to get on with her life.

The second case to come before the courts involving appointment, enlistment, or induction, was Doe v. Alexander, Doe brought suit under civil rights statutes seeking damages and injunctive and declaratory relief with respect to the Army's enforcement of AR 40-501, paragraph 2-14s, following rejection of her application for admission as an officer into the Army Reserve in 1976.

The court evaluated Doe's complaint under the Mindes test and found her claim to be non-reviewable, in that: 1) Plaintiff has no constitutional right to a commission in the Army Reserve; 2) Plaintiff's injury was speculative at best; and 3) The courts are peculiarly ill-equipped to develop judicial standards for passing on the validity of judgments concerning medical fitness for the military. The third and final case involving a transsexual service member is Leyland v. Orr, et al. Leyland, a 15-year veteran of the U. S. Air Force/Air Force Reserve, made the promotion list to Lieutenant Colonel just prior to undergoing sex reassignment surgery. Following an Air Force Review Board hearing, Leyland was discharged from the service.

Leyland filed suit for mandatory, declaratory and injunctive relief, in the United States District Court for the Southern District of California, alleging the discharge was invalid in that: 1) The discharge hearings violated pertinent procedural military regulations; 2) The administrative review, including the Disposition Board, the recommendations, orders and discharge were arbitrary and capricious and unsupported by substantial evidence; 3) The proceedings violated plaintiff's constitutional right of privacy guaranteed by the First, Fourth, Fifth and Ninth Amendments to the Constitution; 4) The proceedings violated plaintiff's constitutional right of free speech and association guaranteed by the First Amendment to the Constitution; and 5) The proceedings violated plaintiff's constitutional right of substantive procedural due process guaranteed by the First Amendment to the Constitution.

The trial court found that the Air Force had acted in an arbitrary and capricious manner in handling the matter. The court failed to rule on what should be done, however, referring the matter back to the parties for resolution.

Leyland appealed to the Ninth Circuit Court of Appeals. The court ruled that discharge of a member of the USAF reserves on ground of physical unfitness after sex reassignment surgery did not violate regulation requiring individual assessment of evaluee's ability to perform before removal for medical reasons, given expert testimony that sex reassignment invariably impairs ability to perform.

A fourth case, Von Hoffburg v. Alexander, involved a non-transsexual service member and her marriage to a female-to-male transsexual. Plaintiff Marie Von Hoffburg was honorably discharged from the United States Army because of her alleged homosexual tendencies. During pre-discharge procedures, the Army elimination board found that plaintiff's husband, Kristian Von Hoffburg, was a psychological female-to-male transsexual but biological female. The board further opined that the intent of AR 635-200 is to define the sex of a person in the biological sense. As such, the board recommended that the plaintiff be discharged from the service because of homosexual tendencies. Plaintiff was subsequently discharged. Plaintiff filed suit just prior to her discharge, seeking a declaratory judgment, injunctive relief and monetary damages. The United States District Court for the Middle District of Alabama dismissed the complaint without prejudice because plaintiff had failed to exhaust her administrative remedies.

Upon appeal the 5th Circuit Court of Appeal held that: 1) The plaintiff must exhaust her administrative remedies prior to seeking judicial review of her honorable discharge from the Army; and 2) Plaintiff's claim for monetary damages cannot be satisfied by the available administrative remedies; she must resort to the courts for that form of relief. Finally, the Appellate Court remanded the case back to the district court with directions to vacate the order of dismissal of the claim for monetary damages, but hold the claim in abeyance pending the administrative resolution of plaintiff's remaining claims.

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