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How the Military Discriminates Against Transgender Individuals

10:29 am in Uncategorized by RH Reality Check

Written by Autumn Sandeen for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Mural: Hero Chelsea Manning

“I enlisted in part an attempt to be the man I wasn’t. Chelsea Manning recently gave that same explanation as to why she enlisted.”

When I joined the U.S. Navy back in 1980, I knew I was transgender. I didn’t know the word transgender, but I knew deep down that’s what I was.

Prior to joining the Navy, in 1979, my pentecostal parents considered transgender identities and transgender expressions to be sinful, and made going to “conversion therapy” a condition of living at home. Due to my own internalized transphobia, I thought I was sinful too, so I underwent the therapy, which had the goal of having me become “ex-transgender.”

A goal of both gay and transgender conversion therapy is to embrace societal gender role norms, so in my case embracing masculine norms was the goal. It should come as no surprise then that when I enlisted in the Navy in 1980, it was in part an attempt to be the man I wasn’t.

Chelsea Manning, who enlisted under the name Bradley Manning—and who in August received a 35-year prison sentence for releasing classified government documents to WikiLeaks—recently gave that same explanation as to why she enlisted.

If either of us had admitted to being transgender before we joined the military, we wouldn’t have been allowed to join. This is because Department of Defense Instruction 6130.03, the Medical Standards for Appointment, Enlistment, or Induction in the Military Services, states that “[c]urrent or history of psychosexual conditions, including but not limited to transsexualism, exhibitionism, transvestism, voyeurism, and other paraphilias” precludes induction.

Department of Defense (DOD) policy also discharges currently serving personnel if they admit to, or are discovered to be, transgender. For enlisted service members, Department of Defense Instruction 1332.14 (the Enlisted Administrative Separations) is the controlling regulation. The Army’s applicable regulation is Army Regulation 40–501, the Standards of Medical Fitness, which states:

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 [to serve].

This transgender exclusion is backed by case law. The first such case in which such exclusion was discussed is 1981′s Doe v. Alexander. Tarynn M. Witten wrote about the case in a 2007 whitepaper entitled “Gender Identity and the Military – Transgender, Transsexual, and Intersex Identified Individuals in the U.S. Armed Forces,” saying:

[T]he Army defended its policy of denying enlistment to transsexual persons, arguing that transsexual persons presented a medical problem in that their requirements for hormone supplementation might not be available at some location where they could be assigned.

The 2007 DeGroat v. Townsend decision by the U.S. Southern District Court in Ohio, Western Division, echoed the decision in Doe v. Alexander, finding Joanne E. Degroat, a member of the U.S. Armed Forces (USAF) from 1974 to 1989, medically unfit to serve. In the decision, the court stated that “USAF medical staff encouraged and counseled her to dress in female street clothing when off-base and off-duty” as part of the treatment plan for her gender dysphoria. Major DeGroat was seen attending church in female clothing, and then “was notified that she had to show cause for retention on active duty for substandard performance due to a failure to show acceptable qualities of leadership required by an officer of her grade, based on her wearing female clothing on two instances and subjecting herself to public view.” Her separation for service was upheld.

The Leyland v. Orr decision is also on point. Jane Anne Leyland was honorably discharged from the Air Force Reserves as being found mentally and physically unfit to serve due to being transsexual and receiving trans-related medical treatment. As Witten wrote in her paper, “Leyland’s fitness for duty recommended discharge on the grounds of psychological unsuitability, the Air Force Board for Correction of Military Records affirmed the discharge on grounds of psychological unsuitability and physical unfitness.”

From the Ninth Circuit Court of Appeals ruling, Dr. Donald Novicki, a urology consultant to the Air Force surgeon general, stated that the known and potential long-term effects of a sex change constitute a risk significant enough to restrict the individual’s performance of Air Force duties, especially when remote geographic assignments are involved. Dr. Novicki stated that assigning such a person to such places “would be equivalent to placing an individual with known coronary artery disease in a remote location without readily available coronary care.” He added, “It has been and remains the policy of the Surgeon General that such abnormalities be identified and that such individuals be denied entry or continued active duty for their benefit and for the benefit of the United States Air Force.”

Lastly, in 1988′s United States v. Davis, the appellant was charged under Article 134 of the Uniform Code of Military Justice after having several Navy psychiatrists diagnose her with what the DSM-V refers to as “gender dysphoria,” and was recommended for continued treatment of the condition. The U.S. Court of Military Appeals ruling on the case stated that expressing gender as one’s target sex while on base in a manner as required by the relevant standard of care “virtually always would be prejudicial to good order and discipline and discrediting to the Armed Forces.”

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Is Marriage Equality Almost Here? Six Possible Outcomes of the DOMA and Prop 8 Cases

11:11 am in Uncategorized by RH Reality Check

Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

The Defense of Marriage Act

A Rainbow flag

There are several different possible outcomes of upcoming Supreme Court decisions.

In 2007 Edie Windsor married Thea Spyer after already being together for 40 years. When Spyer died, in 2009, their home state of New York recognized marriage equality, but because of the Defense of Marriage Act (DOMA), the federal law that defines marriage as a union between one man and one woman, the federal government did not. As a result, Windsor was faced with paying more than $363,000 in federal estate taxes because Spyer had left her estate to Windsor. Had the federal government recognized their marriage and given it the same status as opposite-sex married couples in the state, Windsor would not have to pay any estate taxes.

But it didn’t, and Windsor sued, arguing DOMA violates Equal Protection protections and seeking a refund in her estate tax bill. In October 2012 the Second Circuit Court of Appeals ruled DOMA was unconstitutional. In that decision, the court for the first time held that when government passes laws that discriminate against gay and lesbian individuals those laws will be presumed unconstitutional and that the must have a compelling reason to justify that discrimination.

The Supreme Court now has to answer those two questions: Is Section 3 of DOMA (the part of the law that defines marriage) constitutional, and do gay and lesbian individuals qualify as a protected class for purposes constitutional protections? There are three ways the Court could answer those questions.

1. DOMA Is Unconstitutional

Equality advocates are hoping for a ruling from the Supreme Court that would broadly declare DOMA unconstitutional. Should the Supreme Court strike DOMA in its entirety, then same-sex couples who receive marriage licenses in the 12 states and District of Columbia that recognize same-sex marriages will enjoy the benefits of more than 1,000 federal laws, benefits, programs, and protections that currently favor opposite-sex marriages. A ruling declaring DOMA unconstitutional would likely have no impact on marriage equality bans though.

If the Court does rule DOMA unconstitutional, it could do so via several different analytical tracts. First, the Supreme Court could issue a sweeping ruling under the equal protection clause of the 14th Amendment to the U.S. Constitution. Historically the courts have applied the equal protection clause to protect against the government unfairly infringing on the rights of specific groups and to ensure that certain fundamental rights such as marriage receive heightened legal protection. Advocates have argued that DOMA violates the 14th Amendment both because it targets a specific group of people for unequal treatment and because it affects the fundamental right to marriage.

If the Supreme Court relies on the 14th Amendment to strike DOMA and rule that LGBTQ individuals make up a class that should receive heightened protections because their history of being discriminated against, then the ruling could reach beyond invalidating DOMA and would mean that any law — state or federal — that treats gay or lesbian individuals differently based on their status as gay or lesbian would likely be struck down. That kind of broad ruling is not very likely though, especially given the conservative majority on the Court. But that doesn’t mean hope is lost. The Court doesn’t have to decide the issue of gay and lesbian people as a protected class to strike down DOMA. The Court could rule that because DOMA does not serve legitimate governmental interests it is unconstitutional. Typically, evidence of animosity toward a particular group and the desire to impose a set of morals on the public are not considered by the courts legitimate reasons for the government to pass a law. If ever a law fit that example, it’s DOMA.

There is one other way the Court could find DOMA unconstitutional, and that is through some variation of a “states’ rights” or federalism argument. During oral arguments Justice Anthony Kennedy seemed very concerned with whether or not the federal government had any role in defining marriage to begin with. According to this reasoning, Congress never had the authority to pass DOMA in the first place since it is an attempt to regulate what is traditionally considered within the power and regulation of the states.

The states’ rights theory is not likely to get a majority of votes, but it could be a way for the conservatives on the court to strike DOMA without advancing LGTBQ equality beyond the issue of marriage like a broad 14th Amendment ruling would. But such a decision would be a short-term win, as conservatives have argued federalism concerns invalidate the majority of the social safety net programs. Should the Roberts Court give conservatives broad legal reasoning to support that theory then we can expect to see a host of new legal challenges to everything from Social Security benefits to Medicare and Title X programs.

2. DOMA Is Constitutional

As hard as it is to imagine, the Court could find Section 3 of DOMA constitutional. Should that happen, then those legally married same-sex couples in the 12 states and Washington, D.C., that recognize marriage equality will continue to face systematic discrimination and be denied equal protection under the law as well as access to federal benefits related to more than 1,000 federal laws and programs.

3. SCOTUS Punts on the Merits of the Case Read the rest of this entry →

Scouting a New Path: Girl Scouts of America Creates Inclusive Gender Policy

1:53 pm in Uncategorized by RH Reality Check

Written by Avital Norman Nathman for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

A few months ago, the Girl Scouts of America (GSUSA) found themselves in the midst of a unique controversy. A Denver, Colorado troop initially refused to let 7-year-old Bobby Montoya join. Montoya, who identifies as female, was denied entry to the troop when Felisha Archuleta, Bobby’s mother, first approached them. After protests from Archuleta, and some media coverage, the Colorado Girl Scouts of America ended up welcoming Bobby into the scouts, and released a statement through GLAAD, clarifying the organizations policy:

“Girl Scouts is an inclusive organization and we accept all girls in Kindergarten through 12th grade as members. [...] If a child identifies as a girl and the child’s family presents her as a girl, Girl Scouts of Colorado welcomes her as a Girl Scout.”

However, not everyone associated with the scouts agreed with this message of inclusivity. Just last month, three troops in Louisiana have disbanded over this policy when their troop leaders resigned from their positions. One of the former troop leaders, Susan Bryant-Snure, claimed that the message from the GSUSA is “extremely confusing,” and that it “goes against what we (Northlake Christian School) believe.”

In addition to disbanding some troops, thereby not allowing any girl in these area the opportunity to join the scouts, some parents are calling on a cookie boycott to protest the GSUSA’s inclusion of transgender girls into their organization. With a video quickly going viral, a 14-year-old girl, identified as Taylor from California, speaks on behalf of the group, Honest Girl Scouts, and is calling for a boycott of Girl Scout cookies.

Not only is this video filled with an inaccurate description of transgender, but it does not seem to be espousing any of the Girl Scout values that I learned as a young scout. Compassion, diversity, education, and tolerance were all values that I, and my fellow troop members, held dear. In fact, part of the Girl Scout mission includes the following, “Girl Scouting helps girls develop their full individual potential; relate to others with increasing understanding, skill, and respect.”

To call for a boycott of cookies based on a decision to become more inclusive on the part of the GSUSA seems to go against everything the organization actually stands for.

I spoke with Peggy Orenstein, author of Cinderella Ate My Daughter, a book that takes a look at modern girlhood. Orenstein weighed in on the current Girl Scout issue.

“If you start regulating what is a “girl” and what it is not, you quickly devolve into something really ugly. Think about the controversy over Caster Semenya, the South African runner whose sex was called into question because she was “too fast” for a girl. That was shameful. But what’s next? Should a girl born with no uterus be barred from Scouting? What about one with no ovaries? Should we test chromosomes to make sure there are no girls with Turner’s syndrome (meaning they have only one X chromosome)? What about girls who are chromosomally male but appear (and identify as) totally female because they don’t respond to their male hormones? Obviously, this particular issue affects few girls; the radical Right is using it to create a sex panic, to further its own agenda of intolerance and homophobia. By picking on little girls with cookies. That is so sad.”

For the most part, the video has ended up having the opposite affect. Instead of encouraging people to participate in the boycott, it has actually spurred many more folks to support the GSUSA by buying more cookies this year. Crystal Harvey, mother of two young girls from Massachusetts, shares her reaction to the video, “I honestly feel really sorry for that girl, that she’s been raised so bigoted and small minded. But on the other hand, I now have a really good reason to buy their cookies!!”

I know for a fact that I, too, will be doubling my order of Thin Mints this year in support of a national organization that welcomes, supports, and empowers all girls.

STOKING FIRE: Ultra-Conservative Doctrine May Be the Reason for Unreported Sexual Crimes in the Military

10:29 am in Uncategorized by RH Reality Check

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Written by Eleanor J. Bader for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

The cliché tells us that war is hell, but for female enlistees, the war on the domestic front—within their units–trumps that of the battlefield. In fact, a recent Veteran’s Administration survey revealed statistics that should have turned the military on its warmongering head: 30 percent of female vets told the interviewers that they had been assaulted by a male colleague and/or supervisor. Worse, 14 percent reported having been gang raped and 20 percent reported having been raped more than once.

Shockingly, these figures may be low since under-reporting of sexual crimes is known to be endemic.

Part of the blame for the reluctance to report rests with an unsympathetic military chaplaincy, one of the few places soldiers, sailors, reservists, national guardians, and marines can turn for counseling. According to the St. Louis Post-Dispatch, 20 percent of today’s 3000 military chaplains were trained at the ultraconservative Liberty Baptist Theological Seminary in Lynchburg, Virginia. Founded by Rev. Jerry Falwell and Elmer Towns in 1971, the school bills itself as the world’s largest seminary, something it attributes to its “conservative doctrinal position, its sound grounding in Bible teachings, and its reflection of core Christian essentials.” The school’s website clears up any definitional murkiness: “Liberty is committed to changing the entire world for Jesus Christ, first changing the world with its students, then equipping them to change the world around them.”

While most of its students are undoubtedly attracted to this mission, others attend Liberty because tuition is low: $1900 a term for residential students and $2200 for distance learners. During the 2011-2012 year, nearly 9000 students from 46 countries registered for online classes; of them, more than 1000 hope to complete the 72-credit program and become military chaplains. A severe shortage of armed forces clerics—an article posted on Times Union.com in February 2011 blames the deficiency on the military’s rigid age and physical requirements and on the reluctance of pastors/rabbis/imams to exchange the comforts of home for combat—will likely make this dream come true for many of them.

That this bodes badly for women and the LGBTQ community is a given. Read the rest of this entry →