Military Service and Veterans Benefits

• Author: Ally Windsor Howell
• Profession: Former practicing lawyer from Alabama
• Pages: 49-64

§5.1 Military Service

Transgender people are denied the ability to join the armed forces as

a result of various discriminatory policies. Not only is this unjust to

individual transgender people who wish to serve their country through

military service, it weakens our national defense by barring quali ed

people from duty.

For all of the progress President Obama has made in protecting the

rights of LGBT persons in every area controlled by the federal government,

there has been no progress in the way the uniformed military services treat

transgender persons. Anecdotal evidence from former service members has

shown that transgender persons are being forced out of the military if they

come out while in the military, very often with a less than honorable dis-

charge. No recent reported cases of courts martial of transgender persons

have been found. In the past, of cers and enlisted men have been subjected

to courts martial for “prohibiting conduct which is prejudicial to good

order and discipline in the armed forces or is of nature to bring discredit

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Military Service and

Veterans Bene ts

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upon the armed forces,”

1

“cross-dressing in the presence of others,”

2

and

“eight speci cations of conduct unbecoming an of cer and gentleman” by

cross-dressing.3

The Department of Defense has declared that anyone with a “current

or history of psychosexual conditions, including but not limited to trans-

sexualism, exhibitionism, transvestism, voyeurism, and other paraphilias”

is un t for appointment, enlistment, or induction in the military services

of the United States.4

Members of the military services of the United States who are transgender

and who come out while in the service of the United States can be prosecuted

under the Uniform Code of Military Justice’s catchall of “all disorders and

neglects to the prejudice of good order and discipline in the armed forces,

all conduct of a nature to bring discredit upon the armed forces.”5 Or if the

service member is an of cer, he or she can be prosecuted under the other

catchall of “conduct unbecoming an of cer and a gentleman,”

6

which, at

least to the author, raises the question, how does a female of cer conduct

herself as an “of cer and a gentleman”? A general, special, or summary

court martial can result in a dishonorable discharge, a bad-conduct dis-

charge, or con nement.7

1. U.S. v. Guerrero, 31 M.J. 692 (Navy Marine Corps Ct. Mil. Rev. 1990), aff’d 33 M.J.

295 (Ct. Mil. App. 1991) (Navy Storekeeper First Class (E–6) convicted of “two speci cations

of dressing in women’s clothing in public view in violation of article prohibiting conduct

which is prejudicial to good order and discipline in the armed forces or is of nature to bring

discredit upon the armed forces”); and U.S. v. Davis, 26 M.J. 445 (Ct. Mil. App. 1988) (Navy

Electrician’s Mate Second Class convicted of “at a particular place on a military base, dressed

in women’s clothing to the prejudice of good order and discipline and in a manner to bring

discredit upon the armed forces”).

2. U.S. v. Gunkle, not Reported in M.J., 1999 WL 35021320 (Army Ct. Crim. App.

1999), aff’d 55 M.J. 26 (Ct. Mil. App. 2001) (Staff Sergeant convicted of “cross-dressing in

the presence of others”).

3. U.S. v. Modesto, 39 M.J. 1055 (Army Ct. Crim. App. 1994), aff’d 43 M.J. 315 (Ct. App.

for Armed Forces 1995) (Colonel convicted of “eight speci cations of conduct unbecoming an

of cer and gentleman” by cross-dressing) (failure to disclose that court member had dressed

as woman at Halloween party did not warrant reversal of conviction).

4. Department of Defense Directive 6130.3, “Medical Standards for Appointment, Enlist-

ment, and Induction,” (April 28, 2010), Enclosure 4, ¶ 28.r.

5. 10 U.S.C. § 934.

6. 10 U.S.C. § 933.

7. 10 U.S.C. §§ 818–820.

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