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OutServe Magazine | October 23, 2014

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Trans and the Military FAQ

Trans and the Military FAQ

About a month ago I interviewed David McKean, head of the Servicemember’s Legal Defense Network (SLDN) regarding legal and UCMJ issues surrounding being trans in the military. David emphasized that every situation is differs in the particulars. The way trans people are dealt with by the military depends greatly on the individual chain of command, the trans person’s psychological stability, how well liked they are by their command, and what sort of performer they are.

There is no one path for a person coming to grips with being trans in the military. There are many possibilities that need to be considered. If you are trans and unsure how to handle a situation, please contact the SLDN. It is what they are there for. Because there are potentially serious legal ramifications of transitioning while in the military, I strongly encourage people to contact SLDN as early in the process as possible to get legal advice and to make informed decisions.

I think I’m trans and I want to get help. What do I do now?

By the time most service members contact the SLDN, they are already getting help. They are a few general options at the outset.

You can seek help through military psychological or medical services. This is a risky path in a number of ways. First, most military psychological service providers have little if any experience with transgender or gender dysphoria issues. They are also free to report that you are gender dysphoric to your chain of command. What you say to a military therapist, psychologist, or psychiatrist is not HIPAA protected, and by regulation they have to report anything that affects your ability to serve. This requirement is very vague, and even more so now that the American Psychiatric Association’s DSM-V recognizes that Gender Identity Disorder (GID) is not a mental disorder, and does not necessarily affect an individual’s capacity to function on a daily basis. While military regulations may reference GID or transsexualism, the fact that the new DSM-V lists gender dysphoria as a diagnosis will allow current policies to remain in place

All in all, seeking help through military services is very much a “your mileage may vary” situation.

Going to a therapist or a doctor out in town and doing it out of pocket is common for trans service members. This option is not without risk. It constitutes a violation of UCMJ Article 92, failure obey an order or regulation. David McKean notes that while this option is possible, he has not personally dealt with a case where the military has pursued Article 92 charges against a trans servicemember for getting help out in town. However, he notes, the further you go down the road of transition before you notify your chain of command, the greater the risk of legal or non-judicial action.

It should be noted that “top” surgery for FTMs is not a medically disqualifying procedure, though, while any kind of “bottom” surgery for MTFs or FTMs is.

Another option is going directly to your chain of command and telling them. Frequently they don’t want to deal with this, or the hassle. Some will insist on getting a diagnosis before beginning any kind of process. Others have been known to threaten the member with a UCMJ charge of malingering, especially if a deployment is coming up. Others will quietly ask the member how they want this handled, with an expectation and understand the service member will fulfill their contract and depart quietly. Your command may change your re-enlistment code to not eligible, but allow you to finish out your time. This option is more common when the service member is a high performer, and not showing signs of work related issues.

Most commands, however, will go straight to beginning administrative separation for medical reasons proceedings.

Why Administrative Separation and not Medical?

Transsexualism continues to be treated the same way homosexuality was, which is as a non-medical, non-waiverable, defect.

According to Paula Neira, also of the SLDN, “The law barring the VA from providing gender reassignment surgery is a cynical basis for the military’s process of administratively discharging transgender members with gender dysphoria rather than medically discharging them.”

How Will this Affect the Characterization of My Discharge?

Your characterization of service should be based on your performance, not your gender dysphoria. Receiving a general, rather than an honorable, discharge causes you to lose access to both your old and new educational benefits. A general discharge does not affect your access to VA health care after serving. If you believe the characterization of your discharge is based on your dysphoria, and not your performance, please contact the SLDN. There is an appeals process.

What About VA Health Benefits?

You must have at least 2-3 years of service to be eligible, at a minimum. The characterization of your discharge must be general or better. There are additional requirements and qualifiers, such as having served in a combat theater within the past five years.

VA benefits for trans people include counseling, labs, and access to medications such as Hormone Replacement Therapy (HRT). “Top” and “bottom” surgeries are not covered, nor are cosmetic procedures such as Facial Feminization Surgery (FFS).

Having, or not having, mention of dysphoria in your medical records is unlikely to affect your access to VA health benefits according to David McKean. Thus, most trans service members try not to have it in their records.

When I am ‘Out” to My Command, how can I expect them to handle it?

Most commands handle it well, even if they do decide upon an administrative separation. However, if they do mis-handle it, you have very little recourse. Mis-handling can include divulging medical records to people without a need to know or punitive actions against the service member such as being moved to the graveyard shift, duty on holidays, etc… Neither of this is against HIPAA or the UCMJ. The only recourse is the Inspector General, and the command is responsible for meting out punishment if fault is found by the IG.

Because separation for gender dysphoria is so uncommon, most commands do not know how to handle it. They usually end up consulting base legal on how to deal with the situation. The SLDN can also serve as a legal resource to commanders who want an outside opinion, or to consult with lawyers who work with the intricacies of this policy frequently.

What general advice does David McKean have for trans people after they come out to their commands?

1. As soon as you take steps towards transition or feel the need to transition, do not do it in secret. The risks associated with doing so only get worse and worse over time. Getting caught gets more and more likely, and chances of being punished keep increasing

2. Transition outside the military. This isn’t a good place to make the attempt, and others (such as college), tend to be more ideal.

3. If you are at a point of coming out to your command or medical, be prepared to be openly trans for 2-4 months. It takes 2-4 months to process an administrative separation, and it is almost guaranteed that someone who handles your records will take a look at why you are suddenly being processed out. The people looking at your records are not bound by HIPAA, and at least one of them will probably talk.

4. Expect to do your job as always until you are separated or go on terminal leave.

What advice dos David McKean have for leaders who have a trans person in their unit come out?

1. Know your options. You don’t have to go to directly to administrative separation.

2. If you do go the route of administrative separation, always put professionalism first. Treat this as any other administrative separation.

3. Move a separation along as quickly as possible to reduce the risk of harm to the trans person within your unit.

4. Although it is likely to leak, do your best to limit the information to as few people as possible who have a need to know.

For further information, the SLDN may be contacted at 1-800-538-7418, or legal@sldn.org.