Uniform Code of Military Justice – Article 134
“Though not specifically mentioned in this chapter [10 USCS §§ 801 et seq.], all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter [10 USCS §§ 801 et seq.] may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.”
Military Cross-Dressing Bans – An Explicit Double Standard
Though the Uniform Code of Military Justice (UCMJ) does not explicitly ban cross-dressing, the United States Court of Appeals for the Armed Forces held in the late 1980s and early 1990s that cross-dressing could implicitly violate the UCMJ’s catchall provision in Article 134.
In United States v. Davis, 26 M.J. 445 (1988) the court upheld the bad-conduct discharge of a service-member who “suffered from an admitted gender identity disorder” and was seen cross-dressing while off-duty. The court found that cross-dressing in this context “virtually always would be prejudicial to good order and discipline” and would discredit the armed forces in violation of Article 134. However, the court also mused that cross-dressing during a “King Neptune” hazing ritual or a “Kibuki theatre” [sic] performance would likely not be in violation of Article 134.
The court again employed a double standard in United States v. Guerrero, 33 M.J. 295 (1991). The court mused that “many popular entertainers have successfully portrayed women characters” and provided a list of popular cross-dressed performers, clarifying that “it is not the cross-dressing per se which gives rise to the offense. Rather, it is (1) the time, (2) the place, (3) the circumstances, and (4) the purpose for the cross-dressing, all together” that violate Article 134. While the court suggested a service-member could lawfully cross-dress in secrecy, “with his curtains or drapes closed and no reasonable belief that he was being observed by others,” the defendant’s publicly perceived off-duty cross-dressing was held to be grounds for discharge.
The court’s reluctance to condemn all forms of cross-dressing can be explained by the widespread nature of cross-dressing practices in the armed forces. At times, drag shows were not merely tolerated, but actually “celebrated as a boon for morale.” For example, the wartime patriotic film “This Is The Army” depicts characters played by future president Ronald Reagan and future U.S. senator George Murphy gleefully directing active-duty WWII service-members, who donned dresses, wigs, and makeup to enact elaborate drag shows.1
Davis and Guerrero thus employed a clear double standard, finding that cross-dressing as an act of self-expression or exploration is prohibited, while cross-dressing for entertainment or hazing purposes is permissible.
- For more on military cross-dressing during WWI and WWII, see Alan Bérubé, Coming Out Under Fire: The History of Gay Men and Women in World War II 67-96 (2d ed. 2010) (1990). ↩︎
© Kat Reilley Harlow