Issue: DADT was repealed, but continuing discrimination against transgender people in the military violates university non-discrimination policies
Instances of this issue: Yale Herald blog post, Stanford Students for Queer Liberation, Harvard Crimson op-ed and Harvard Crimson news article.
Facts: Non-discrimination policies at universities, such as those at Brown, Columbia, Harvard, Stanford and Yale, do refer to transgender people, using language referring to "gender-identity". As detailed in the instances above, and in a report prepared for the Palm Center, military regulations treat transgender status as an exclusionary factor for military service.
The exclusion in these military regulations of transgender people is not required by law. Accordingly, the military may use the individual privacy infrastructure planned being added for DADT repeal to accommodate some types of transgender people in the military without needing action by Congress. In some situations, such as performing gender assignment surgery for ambiguous genitalia on adults instead of newborns, there are few practical problems and the issue could be solved by changes in military regulations. However, some LGBT activists raise practical concerns for people undergoing gender transitions while in the military (see also the comments by jessicawo on the Harvard Crimson op-ed).
It is far from clear that the Obama administration will push for changes in policy towards transgender people until the repeal of DADT has been implemented and the privacy infrastructure is already in place. Accordingly, some LGBT activists at Harvard, Columbia and Stanford have argued for moving forward on ROTC despite concerns on the transgender issue, and using the experience of DADT reform to trust that the system will work, as voiced by faculty at Harvard's Naval ROTC agreement ceremony.
As background, it should be noted that part of the reason the transgender issue has taken on increased prominence in the past decade is that gender assignment surgery, once done within days of birth in the fraction of a percent of cases in which a child is born with ambiguous genitalia, is now typically left as a choice for the individual to make at the age of majority. This change was made because may poor choices were made for newborns by parents and doctors. Thus, someone who would have had gender assignment surgery at birth now has a choice to make as a teenager, and is labeled as having a Gender Identity Disorder, while in previous generations no one would have tacked a psychiatric diagnosis onto the newborn who didn't fit as clearly male or female, and no one would have questioned the propriety of such an individual serving in the military.
Federal law prohibits Veterans Health Administration (VA) facilities from performing or paying for sex-change surgeries. But some VA medical centers provide psychological counseling, sex hormones, speech therapy and other medical treatment short of gender reassignment surgery.
On the subject of university non-discrimination policies, it is not clear how far the military will or should move to make its non-discrimination policies identical to those of universities. For example, the university non-discrimination statements also protect non-citizens and other individuals such as those with disabilities, whose service in the military could be problematic in some cases. Harvard's non-discrimination policy includes the phrase "unrelated to course requirements"; the equivalent in the military would be factors that are deemed problematic for military service such as disabilities or being significantly overweight. Since being eligible for military commission is a prerequisite for taking certain ROTC courses, such factors could be considered related to course requirements.
At some universities, the non-discrimination statements also protect those with "veteran status" or "military status". It would be ironic if the non-discrimination statements were to be cited as a reason to discriminate against ROTC.
The university non-discrimination statements often include language such as "legally protected status", "consistent with its obligations under the law", "unlawful discrimination" and "protected by applicable law", wording that recognizes that the purposes of the non-discrimination statements is to implement existing law. At Stanford, "University general counsel Debra Zumwalt said that formal recognition of ROTC would not violate the nondiscrimination policy as it currently stands. “Our policy prevents against illegal discrimination,” she explained. “Based on all the information we have, we do not see an illegal discrimination and [ROTC] does not violate our policy.”"