Military Times

Ask the Lawyer: Transgender service members' rights are evolving

Q. I am a transgender member of the armed forces. What are my rights to serve?

A. On Aug. 3, the Pentagon began to dismantle the ban on service by openly transgender Americans. As a study from the Williams Institute at UCLA estimates, as of May 2014, there were 15,500 transgender Americans serving in the Guard or reserves, and approximately 150,000 veterans from the Guard or reserves. Secretary of Defense Ash Carter's July 2015 memo stated the assumption that "transgender persons can serve openly without adverse impact on military effectiveness and readiness unless and except where objective, practical impediments are identified," after establishing a task force to identify the purported "objective, practical impediments" to open service by transgender armed forces members.

As the Advocate magazine further stated, "[s]ince July 13, any discharge orders or reenlistment denials for transgender troops have had to be 'personally approved' by Acting Under Secretary of Defense for Personnel and Readiness Brad Carson." This heightened standard instituted a de facto moratorium on dismissals of transgender troops by Defense Secretary Carter, effectively ending these dismissals.

A six-month implementation of transgender service allows the commanders of each service branch time to address various issues that may occur in each branch upon overturning the prior regulations. These prior regulations held transgender service members as "not medically fit for duty," with a deployment-limiting medical or mental health condition. However, ALARACT 042/2015 (March 6, 2015) stated that "effective immediately, separations (…) for enlisted soldiers diagnosed with gender dysphoria or for soldiers who are transgender" can only be decided after they are sent through various high-level offices. On May 27, 2016, the ban on transgender service is expected to be entirely nullified.

Another concern is the characterization of service of transgender troops who have been discharged under the current regulations. Though the service member may have committed no actual offense, these service characterizations could affect a veteran's benefits and future employment opportunities. An experienced military law attorney may be able to assist a service member with upgrading their characterization of service and changing RE codes for those previously discharged under the now-void "don't ask, don't tell" legislation.

Mathew B. Tully is a veteran of the Iraq and Afghanistan wars and a founding partner of Tully Rinckey PLLC. Email The information in this column is not intended as legal advice.

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