Transgender Service: The Next Social Domino for the Army

• Author: Major Mark R. Milhiser
• Pages: 191-217

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.

DEP’T 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.DEP’T 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.DEP’T 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.