Military policy shift for transgender service members underscores discriminatory, outdated nature of HB2

By: - October 12, 2016 1:14 pm
Payton McGarry

Payton McGarry wants to serve his country – and this time around, his country wants him.

In high school McGarry was part of the Air Force Junior Reserve Officer Training Corps. He dreamed of joining the Marine Corps.

But while the corps is always looking for a few good men, McGarry was a young transgender man – and therefore ineligible for service.

“It was pretty crushing,” McGarry said. “That was my dream. But I knew I couldn’t deny who I was.”

McGarry, now 20, went on to college at UNCG, where he’s now a junior majoring in economics. Earlier this year, when Gov. Pat McCrory signed House Bill 2 into law, McGarry volunteered for a different kind of service. He became a plaintiff in the federal lawsuit against the law, which has been denounced as discriminatory.

He braved the spotlight, sharing the very personal story of his gender transition and taking the criticism and insults he knew would come with it. He worked to educate people about the realities of being transgender and to dispel dangerous misinformation.

Ironically, it was exactly the kind of tenacity and leadership military recruiters say they look for.

“To be honest, I thought about it a lot and I was depressed about it,” McGarry said. “I thought maybe I should just get off of hormones, try to live as a woman so I could be accepted, so I could have this thing I’d been planning on and dreaming of.”

But that would be a lie, McGarry said – hardly the way to become one of the Few and the Proud.

Then in June the Department of Defense announced it would lift its ban on transgender service in the military. This month, new protocols go into effect for transgender recruits, service members and their commanders.

“I was excited, of course,” McGarry said. “I’ve been thinking about law school, and joining the [Judge Advocate General’s Corps].”

But while the renewed dream has energized McGarry, there is still a sobering reality to be faced.

“North Carolina has a lot of military bases,” McGarry said. “Right now, if I was to be stationed on any of them I would be living by one standard on base and – because of HB2 – I’d be living by another as soon as I left the base.”

The law doesn’t just require transgender people to choose bathrooms according the sex on their birth certificates and not their gender identity. It excludes all lesbian, gay, bisexual and transgender people from statewide nondiscrimination protections – and bars local governments from extending those protections to them.

That’s a problem, say a number of current and former military service members – and it is, unfortunately, not the first time that the military has been out ahead of state law on important social issues.


“North Carolina has been down this path before,” said N.C. Rep. Grier Martin (D-Wake) this week.

“In the 1950s and 60s, before North Carolina society had been desegregated but long after President Truman had desegregated the armed forces in 1948, we were in the same situation,” Martin said.

Rep. Grier Martin
Rep. Grier Martin

Transgender soldiers will now be completely equal on Ft. Bragg, Martin said – they can serve openly, choose restrooms according to their gender identity, even be married by Army chaplains in a base chapel.

“But the moment they step off the military installation, you’ve got the discriminatory language of HB2,” Martin said. “And that discriminates not just against transgender but also homosexual soldiers…they could leave the base and go to a restaurant in Cumberland County and be denied service while they are serving their country.”

Martin has fought HB2 since its inception. But he’s not just a state representative – he’s also a Lt. Colonel in the United States Army Reserve and a veteran of the war in Afghanistan.

Martin, 47, said he has every faith military bases – and the soldiers, sailors, Airmen and Marines on them – will adjust to the new status quo.

“I consider myself a professional soldier and I work with professional soldiers,” Martin said. “We’ve had our briefing. We shout “Hooah” and we follow our orders, we carry out our mission.”

But off base may be different, Martin said – especially in the divisive climate created by the fight over HB2. Still, he has faith that North Carolinians will catch up to the changing times.

“North Carolinians in the end are a caring people,” Martin said. “We’re talking about these things right now, and I think a lot of people are just beginning to understand them. I think the more we understand an issue and get to know the human side of the issue, our compassion will show through.”

There was a time when many people in North Carolina didn’t realize that they knew any gay or lesbian people either, Martin said – and their opinions on gay and lesbian rights reflected that.

“But today more and more of us can say we have a gay friend – we can say that we go to church with someone who is gay, we work with someone who is gay,” Martin said. “And I think as transgender people are allowed to come out of the shadows and begin living openly more and more, the same thing is going to happen.”


Kris Poppe has had the opportunity to see a lot of change in the military.

He spent 35 years in military service with stints in both the Marine Corps and the Army, where he retired in April as Lt. Colonel and JAG officer. He is now a lawyer in private practice in Fayetteville.

Kris Poppe
Kris Poppe

“In the early part of my career was spent as Marine and in the infantry,” Poppe said. “I had 13 years of service before I served in a unit that had a woman in it. I remember at the time that a Sgt. Major of the Marine Corps said he was opposed to having women in a combat arms unit because they couldn’t throw a grenade the same distance.”

Few people would argue that the military is weaker for having moved on from that kind of thinking, Poppe said.

“When you serve with women, when they become integrated across the Army, across the Marine Corps, when they open up the combat arms jobs – it doesn’t make for a social engineering experiment, it makes for a more effective military. I can attest without qualification that the Marine Corps and the Army are much better today than they were when I enlisted.”

The same was true of gay and lesbian service members being allowed to serve openly since 2011, Poppe said – and it will be true of transgender service members as well.

“You’ve got to remember that the military service is mostly populated by young people,” Poppe said. “And generational differences make a huge difference in perception. Today’s college students and recent high school graduates have huge differences on these issues with people who are 20 years older.”

HB2 and the fight over it make for unnecessary complications though, Poppe said.

“That’s a truly unfortunate complication to their lives as service members,” Poppe said. “It’s difficult being a service member. The army sends you where they need you. If somebody gets assigned to Fort Bragg it’s because the Army needs them there. It would be unfortunate if because of who you are, you’re treated differently than if you were assigned to Fort Lewis, Washington.”

Poppe said he’s confident bases like Bragg or Camp Lejeune will treat transgender service members in accordance with the standards set out by the DoD – and with the respect they deserve.

“But the difference between the DoD policy and state policy does make an island of the base where they’re stationed,” Poppe said.


HB2 is, of course, not the only complication for transgender service members.

Right now the DoD policy is a bit vague in the specifics of how branches of the military will deal with transgender service members – and some of the new policies don’t reflect transgender peoples’ actual lives.

“I think some of what they’re talking about now isn’t going to work for actual trans people,” McGarry said this week. “I think it’s going to have to evolve.”

McGarry served in the ROTC in high school.
McGarry proudly served in the ROTC in high school.

Among the concerns of transgender advocates: The policy says that service members who are experiencing gender dysphoria – the unease caused by a conflict between the gender they were assigned at birth and the gender with which they identify – will be provided medical treatment and help with transitioning. Service members whose transitions from one gender to another should be treated as their new gender, the policy says.

But when is a transition considered complete? Many transgender people choose not to have surgery related to their transitions. Some choose a course of hormone therapy. Some don’t consider that necessary. Who will decide how and when someone transitions within the military?

Further, many transgender people do not consider gender to be binary. Some non-binary transgender people identify as neither fully male nor female – and some find themselves moving along a spectrum of gender identity throughout their lives. How will the military deal with those people?

Under the new policy, recruits will also have to be “stable” in their gender transition for at least 18 months. What does stable mean — and does that make sense for all or even most transgender people, some of whom transition for years? Should they be barred from service during that period, or risk postponing their transition until they are already service members? What might be the physical and psychological risks of doing so?

Before it can tackle those questions, the DoD needs a better idea of who is transgender and how it is defined.

To date, good data has been relatively scarce.

A Rand Corporation research report cited by the DoD puts the number of transgender people already serving in active duty at between 1,320 and 6,630 – a fraction of one percent of those serving in armed forces.

“The costs of letting them serve openly and access military health care would be ‘overwhelmingly small’ as a percentage of military spending,” the report said. “No more than 140 active-duty service members a year would likely seek gender-transition hormone treatments, for example; even fewer would seek transition-related surgeries. That would add between $2.4 million and $8.4 million to an annual military health care budget of more than $6 billion, the researchers estimated.”

Those numbers are likely to go up as more service members come out and as transgender recruits like McGarry come aboard. This week Army, Navy and Marine Corps recruiters in North Carolina told NC Policy Watch they have seen an uptick in interest from transgender people in the last few months. But they have had an increasing number of questions about HB2 and how it might impact their lives if they are stationed in North Carolina.

There are plenty of questions to be answered and details decided going forward, Poppe said – but that the DoD will be monitoring its progress on the issues and making changes accordingly.

As the Marines are fond of saying – improvise, adapt, overcome.

“Overall I think this is a great step,” Poppe said. “When you see that there were people who identify as transgender and were not able to serve when they have all of the abilities, all of the qualifications and most importantly the desire to serve…I think this is progress that makes me proud.”

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Joe Killian
Joe Killian

Investigative Reporter Joe Killian's work examines government, politics and policy, with a special emphasis on higher education, LGBTQ issues and extremism.