Sgt. John Smith of the US Army is dating Mary, a transwoman who’s had full genital reconstruction surgery. His CO finds out. Is Sgt. Smith violating DADT and/or the UCMJ’s by having sex with Mary? Does the DoD consider Mary a man or a woman? What if John & Mary marry? Does the new Mrs Smith get spousal benefits? What if it was Sgt. Jane Smith and a transman who hadn’t had GRS (which many transmen skip)? Does it matter if the relationship is taking place in a state that allows transsexuals can legally change their sex vs one that doesn’t? If so what happens when Sgt. & Mrs Smith get transfered from a state that does to a state that doesn’t?
Why is it anybodies business if people are having sex, unless they are doing it on the battlefield and ignoring orders?
Federal Law is tops. If they go from state to state, the local law does not prevail. this is like the argument when Truman ended discrimination in the services. What about states that didn’t recognize it. It did not matter.
[Moderator Note]
Let’s stick to the factual aspects in the OP. We don’t need to get into a debate here about the policy itself.
Colibri
General Questions Moderator
I thought once you get the big operation you are legally the new sex. Is this not the case?
If not I feel dumb for assuming that.
It varies from jurisdiction to jurisdiction. In some places, you can have your legal sex corrected without requiring surgery. In others, surgery of various kinds is required. In still others, such as some US states, legal sex can never be changed.
Here’s a current GQ thread on the question: In the US, what determines my gender for legal purposes? - Factual Questions - Straight Dope Message Board
No. For example, Kansas does not recognize transsexualism as changing sex/gender (according to the Supreme Court). Ironically, an M2F who had surgery and presented as a woman could legally marry another woman.
http://www.transgenderlaw.org/cases/karelease.htm
However, the tactic taken by Kansas has been instead to harass and arrest transsexuals, such as this notorious (well, around here) case: http://www.kcavp.org/site/about-us/news/kcavp-condemns-prosecution-transsexual-leavenworth-county-kansas/
Transsexuals and transgendered persons are one of the last groups that it’s still “cool” to mock, deride, discriminate against, harass, bring specious and unnecessary legal action against, attack, batter, and kill. Even the lesbian and gay community is at best suspicious and at worst openly hostile toward those embarrassing “T’s.” They can and should never assume that they would be free from prosecution in the context of the military or civil court system unless and until there is a major Supreme Court reversal or a Constitutional Amendment (or a President is elected who cares about all letters of the LGBT, unlike our current one or any of the prior ones).
Is there a clear Federal position on how to recognize trans people? I think I recall seeing discussion of changing the gender on one’s passport here before. If I am in fact recalling that correctly then that would imply that one can get their new gender legally recognized by the Federal government.
I am not a legal expert, but my best guess (as a former soldier, thus with a passing familiarity with the UCMJ and military law) is that however the Federal government recognizes the partners in the OP the military will follow suit.
To the best of my knowledge whether or not their is a DADT issue would rest solely on the answer to the above question. If the military recognizes the partners as being the same gender then DADT will come into play. If the military regards the partners as two different genders then they should be legally free to carry on their relationship as they see fit.
So… ignorant furriner question: if you do live somewhere that you can get your legal gender changed (whether pre- or post-op), and you get legal papers issued for your new gender, then doesn’t (or why doesn’t) the full faith and credit thingy apply?
The regulation prohibits marriages or attempted marriages between persons of the same biological gender. However, the purpose of DADT is to prevent the type of witch hunts the OP describes.
If the Commander discovered that SGT Smith had married a postoperative transgendered person, the person would be a biological female. DADT would not apply. The question would then be how would Commander Snuffy have found out?
A sexual relationship with a transexual person would depend on the biological gender of the persons involved. But again, the Commander would have to have credible evidence that SGT Smith was violating the policy.
SSG § Schwartz
I am not an American, let alone an American legal expert, but it seems to me there have been cases in which, exactly, a trans person has his or her legal gender corrected in one state, then moves to another only to find that the second state will ignore their corrected gender when the chips are down (e.g. when a marriage is contested).
As to why it doesn’t apply? My guess is because the courts in those states don’t give enough of a shit about trans people’s dignity to consider that the Constitution might protect them.