A leading advocacy group that provides legal assistance to LGBT members of the armed forces has renewed a call for President Barack Obama to issue an executive order banning discrimination and harassment based on sexual orientation and gender identity in the military.
"The purpose of the executive order is to create a new mechanism that gay and lesbian service members can use when they feel they have a legitimate complaint about harassment or discrimination," said Aubrey Sarvis, executive director of Servicemembers Legal Defense Network.
The "Don't Ask, Don't Tell" (DADT) Repeal Act of 2010, set to take effect Sept. 20, does not include provisions for recourse outside of the chain of command in registering complaints.
Unlike women and minorities—both protected classes—gay, lesbian, and bisexual service members cannot lodge complaints through the Military Equal Opportunity system.
Without the option of an independent investigatory channel, like MEO, service members may well be appealing "through a chain of command, where the harassment comes from in the first place," explained retired Navy commander Zoe Dunning, who co-chairs SLDN's board of directors.
The reason in pushing for an executive order, explained Sarvis, is because "so far" Marine General Clifford L. Stanley, undersecretary of defense for personnel readiness, and Marine Major General Steven A. Hummer, head of the repeal implementation team, "have indicated that MEO would not be available to gay and lesbian service members post-repeal."
Under DADT repeal, besides going through the chain of command, service members would have the option of seeking redress through military's inspector general's office.
However, while the inspector general avenue is supposed to be independent of the chain of command, it is not entirely so because of a dual reporting structure.
In addition, registering complaints through the inspector general may be "intimidating" to some service members while others may not know how to access the office, explained Dunning.
Initial congressional repeal legislation, the Military Readiness Enhancement Act, which SLDN and other LGBT groups had backed for years, included provisions for a "policy of non-discrimination based on sexual orientation" and would have required the Department of Defense to include sexual orientation as a protected class for the purposes of equal opportunity and access to service-member advocacy programs.
However, those provisions were stripped from final repeal legislation "because of Defense Department opposition," said Sarvis.
Back in February, SLDN first wrote to the president urging him to issue an inclusive executive order with hopes it would take effect on same day as DADT's repeal.
On July 26, four days after Obama, Defense Secretary Leon Panetta, and Joint Chiefs Chairman Admiral Mike Mullen certified the military as ready to implement repeal, SLDN renewed its call for an executive order and launched an online petition drive.
Besides a presidential order, Sarvis said another option is for Panetta to issue a directive specifying that MEO is the appropriate place for service members to appeal if they believe they are being discriminated or harassed because of sexual orientation.
Yet an executive order inclusive of both sexual orientation and gender identity would not permit open transgender military service. Current medical and military regulations prohibit it.
Meanwhile, "What would be the impact of an anti-discrimination order be for people are not allowed to be there?" said Mara Keisling, executive director of the National Center for Transgender Equality.
"What does it mean that you cannot be harassed if you can be thrown out just for being yourself?" she added. "I don't think we know the answer to that question. But sure we are supportive [of SLDN's effort]. We just don't know if it really matters."
Fred Sainz, vice president of the Human Rights Campaign, said the organization is supportive of an executive order. He also said that HRC would be working with SLDN and other "coalition partners, jointly, to assemble the most impactful plan" to achieve transgender service.
Still, not everyone agrees on the need for an executive order.
"SLDN's strategy is unwise," said Aaron Belkin, director of the Palm Center at UCLA. "Demanding one is not cost-free, and we have much higher priorities like the rights of transgender troops. The bottom line is we don't need one," he explained, "because even a mean-spirited administration will be unable to reverse the repeal of 'Don't Ask, Don't Tell.'"
Nonetheless, everyone is in accord on one point—the need for "more education and advocacy to bring the Pentagon along on transgender service," as Alexander Nicholson, executive director of Servicemembers United, explained.
"Education, education, and more education," said Sarvis. "Frankly, this has to happen to a greater extent in the civilian sector first. The military is not going to get ahead of civilian society on this."
Two major obstacles stand in the way of transgender service. One is the American Psychiatric Association's Diagnostic and Statistical Manual, which defines "sexual and gender identity disorders." Another barrier is Department of Defense regulations, medical and mental health standards, which bar from military service anyone with "a history of major abnormalities or defects of the genitalia, such as sex change [and] hermaphroditism" and "current or history of psychosexual conditions, including but not limited to transsexualism [and] transvestism."
The "reality on the ground," said Sarvis, is "there are very few transgender service members who have made the transition physically." Some may have made the "psychological or social transition," he added.
However, physical transition is related to "a short arms inspection," the military requirement for an annual physical exam, stripped naked. In that case, "any physical transition would be obvious," explained Sarvis, and "reporting that in all likelihood would result in a service member's discharge within a matter of months."
Still, undeterred in her advocacy, transgender activist Eva Kraus of Marlboro, Massachusetts, a former naval tactical intelligence officer, argues for "a medical and psychological understanding that we are not at diminished capacity," she said. "We need medical verification of who we are—essentially gender variant but normally functioning individuals."
Currently, at least 10 countries allow transgender service in varying degrees, including Australia, Belgium, Canada, the Czech Republic, Israel, the Netherlands, Spain, Sweden, Thailand and the United Kingdom, according to SLDN.
©2011 Chuck Colbert. All rights reserved.
