Transgender Service: The Next Social Domino for the Army

Author:Major Mark R. Milhiser
Pages:191-217
 
FREE EXCERPT
2014] TRANSGENDER SERVICE 191
TRANSGENDER SERVICE: THE NEXT SOCIAL DOMINO
FOR THE ARMY
MAJOR MARK R. MILHISER*
The point is that if the Army completely wasted me over
40 years ago, how many more career caliber, and
otherwise high caliber officers, NCO (Non-
Commissioned Officer) and enlisted personnel has it
wasted and does it continue to waste over its stupid anti-
trans regulations?1
* Judge Advocate, U.S. Army. Presently assigned as Military Personnel Law Attorney,
The Pentagon. LL.M., 2014, The Judge Advocate General’s School, U.S. Army,
Charlottesville, Virginia; J.D., 2001, Widener University School of Law; B.S., 1997,
Auburn University. Previous assignments include Assistant Staff Judge Advocate, 335th
Signal Command (Theater), East Point, Georgia, 2010–2013; Contract and Fiscal Law
Attorney, U.S. Army Reserve Command, Fort McPherson, Georgia, 2008–2010;
Administrative Law Attorney, Third U.S. Army, Camp Arifjan, Kuwait and Fort
McPherson, Georgia; 2007–2008; Military Law Attorney, U.S. Army Reserve Command,
Fort McPherson, Georgia, 2006–2007. Member of the bar of New Jersey. This article
was submitted in partial completion of the Master of Laws requirements of the 62nd
Judge Advocate Officer Graduate Course. The author thanks his paper advisor, MAJ
Sally MacDonald, as well as MAJ Keirsten Kennedy, MAJ Laura O’Donnell, MAJ Will
Nicholson, Maj. Nicole Navin, Mr. Chuck Strong and Mrs. Marne Moncus for their
guidance in editing, developing, and publishing this article.
1 E-mail from Phyllis Randolph Frye, Senior Partner, Frye & Assocs., PLLC Law Firm
& Assoc. Mun. Judge in Houston, Tex., to author (Sept. 27, 2013, 05:18 PM EST) (on
file with author). Phyllis Frye was born Phillip Randolph Frye on February 10, 1948, and
grew up in San Antonio, Texas. Phillip was an Eagle Scout, varsity letter winner and
Cadet Colonel for his high school’s Corps of Cadets. Phillip went to Texas A&M on a
four-year ROTC scholarship in 1966. He completed his Civil Engineering degree in
three-and-a-half years. He immediately pursued his Masters Degree in Mechanical
Engineering and completed the program after being commissioned as a Second
Lieutenant (2LT) in the Regular Army in January 1970. While in the Army, Phillip
served at Fort Sam Houston, Texas, and Landstuhl, Germany. In 1972, as his wife was
leaving him, Phillip was accused of crossdressing. The Army initiated separation
procedures against then–First Lieutenant (1LT) Frye because of the alleged
crossdressing. First Lieutenant Frye was ultimately separated with an Honorable
discharge in August 1972. In 1976 Phillip transitioned to Phyllis. While presenting as a
female, Phyllis was blackballed by engineering firms and was unable to find work in
Houston. With the G.I. Bill, Phyllis enrolled in the University of Houston and earned an
M.B.A. and J.D. Phyllis has been a lawyer since 1981. In the intervening years, she has
become the senior named partner in a law firm, has been appointed a municipal court
judge and has an annual Advocacy Award named after her that is presented during Texas
A&M diversity celebrations. Phyllis Randolph Frye is the self-proclaimed “Grandmother
of the National TG (Transgender) Legal and Political Movement.” ALLY WINDSOR
HOWELL, TRANSGENDER PERSONS AND THE LAW, at xiv (2013).
192 MILITARY LAW REVIEW [Vol. 220
I. Introduction
The U.S. military has a track record of adapting to societal shifts.2
Sometimes the military is the impetus for change and at other times it is
the last to adapt. Women were once relegated to non-uniformed and
non-combat support positions. Today, women are allowed to serve,
attend military academies, and participate in ground combat hostilities.3
African-Americans encountered segregation, lack of opportunity for
advancement, and targeted hatred while serving in uniform, and today an
African-American is Commander in Chief of the armed forces.
Currently, the Army celebrates its diversity by recognizing the heritage
and history of its minority personnel,4 yet gender, race, and ethnicities
are not the only societal issues that the U.S. military has addressed.
Recent reform of sexual assault laws5 and the Department of Defense’s
(DoD’s) initiative to eradicate hazing and bullying6 in the service
academies and in the ranks shows a continually adapting military that
reflects the U.S. military and society as a whole.
2 Women’s Armed Services Integration Act of 1948, Pub. L. No. 625, ch 449, 62 Stat.
356 (authorizing enlistment and appointment of women in the active duty and reserve
armed forces).
3 U.S. Dep’t of Def. Appropriation Authorization Act, Pub. L. No. 94-106, tit. VIII, 89
Stat. 531 (1975) (authorizing women to attend the U.S. service academies). See U.S.
DEPT OF DEF., REPORT TO CONGRESS ON THE REVIEW OF LAWS, POLICIES AND
REGULATIONS RESTRICTING THE SERVICE OF FEMALE MEMBERS IN THE U.S. ARMED
FORCES (2012). See also U.S. DEP'T OF ARMY, DIR. 2012-16, CHANGES TO ARMY POLICY
FOR THE ASSIGNMENT OF FEMALE SOLDIERS (27 June 2012).
4 Memoranda from Sec’y of Army, Chief of Staff of the Army, and Sergeant Major of
the Army, announcing African American Black History Month (Feb. 2013), Asian Pacific
American Heritage Month (May 2013), National Hispanic Heritage Month (15 Sept.–15
Oct. 2013), and National American Indian Heritage Month (Nov. 2013) (on file with
author). See also U.S. DEPT OF ARMY, REG. 600-20, ARMY COMMAND POLICY ch. 6 (18
Mar. 2008) [hereinafter AR 600-20] (RAR 20 Sept. 2012).
5 National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1701–
1753.
6 U.S. DEPT OF DEF., DIR. 1322.22, SERVICE ACADEMIES para. 4.5.3 (24 Aug. 1994). See
also AR 600-20, supra note 4, para. 4-20. See also On Quality of Life in the United
States Army, 112th Cong. 2d Sess. (2012) (statement of Sergeant Major of the Army).
See also Army Sergeant First Class Tyron C. Marshall, Jr., Pentagon Official
Underscores Zero Tolerance Policy for Bullying, AM. FORCES PRESS SERV., Dec. 21,
2011, available at http://www.defense.gov/news/newsarticle.aspx?id=66573. See also
defense.gov/news/newsarticle.aspx?id=66573. See also Donna Miles & Army Sergeant
First Class Tyrone C. Marshall, Jr., Dempsey: Hazing, Bullying ‘Intolerable’ in Military,
AM. FORCES PRESS SERV., Dec. 23, 2011, available at http://www.defense.gov/
news/newsarticle.aspx?id=66590.

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