President Donald Trump will soon be getting most, but not all, of what he wanted in the fight against transgender members serving in the United States Armed Forces.
After April 12, no one being treated for gender dysphoria will be able to enlist, and those serving can only continue if they don’t get trans-affirming medical care and serve in the gender they were assigned at birth.
On March 12, the Office of the Deputy Secretary of Defense issued a 15-page memo called “Military Service by Transgender Persons and Persons with Gender Dysphoria.” (Click here to see the entire document.) It states in part: “No person, solely on the basis of his or her gender identity, will be denied accession into the Military Services; Involuntarily separated or discharged from the Military Services; Denied reenlistment or continuation of service in the Military Services; or Subjected to adverse action or mistreatment.”
However, “Transgender Service members or applicants for accession to the Military Services must be subject to the same standards as all other persons. When a standard, requirement, or policy depends on whether the individual is a male or a female (e.g., medical fitness for duty; physical fitness and body fat standards; berthing, bathroom, and shower facilities; and uniform and grooming standards), all persons will be subject to the standard, requirement, or policy associated with their biological sex. Transgender persons may seek waivers or exceptions to these or any other standards, requirements or policies on the same terms as any other person.”
Also, “Service members who access in their preferred gender or received a diagnosis of gender dysphoria from, or had such diagnosis confirmed by, a military medical provider before the effective date of this [memo] will be allowed to continue serving in the military pursuant to the policies and procedures in effect before the effective date of this [memo],” meaning April 12.
That exemption will allow service members who have been given a diagnosis of gender dysphoria by a military provider before April 12 to stay in the military and receive transition-related care.
That has transgender service members rushing to get diagnosed with gender dysphoria so they can qualify for the exemption. However, according to SPART*A: A Transgender Military Advocacy Organization, many military providers have limited experience working with transgender patients and some expressed hesitancy providing diagnoses in only one or two sessions, when time is of the essence.
“The fact is we have transgender service members serving honorably, meeting the standards, and living here in Pennsylvania,” said OutServe-SLDN Education and Advocacy Program Manager Scott Davis. “Our focus at the state level is supporting the unique needs of local LGBTQ and HIV-positive service members and veterans who have sacrificed so much for us. To that end, we work with other veteran service organizations and advocates in the area to ensure our Pennsylvania LGBTQ and HIV-positive service members and vets are taken care of and afforded the honor that they have earned.”
According to one local transgender vet, the Trump ban could cause nearly 15,000 trained military personnel to be discharged by June. That includes upwards of 2,000 ETS (Expiration of Term of Service) in the Philadelphia area alone. Those professional military personnel would get no help from the Veterans Administration and no retraining to work in the outside world, and many may receive “other than honorable” discharges, which could haunt them the rest of their lives.
OutServe-SLDN is asking service members who are transgender but have not been diagnosed with gender dysphoria to email its legal department at [email protected].
Transgender people were first banned from military service in 1963, by a regulation that deemed them unqualified due to having an unfit mental state. The end of “Don’t Ask, Don’t Tell” (1994-2011) allowed for open gay, lesbian and bisexual service members, but not transgender.
The ban on open transgender military service was finally repealed on June 30, 2016. Under President Barack Obama, Defense Secretary Ashton Carter published a directive that qualified service members could not be discharged on the basis of gender identity and new rules included health benefits.
Transgender people have been serving openly for less than three years, but that was long enough for all four service chiefs to go on record, saying there has been no harm to any units due to transgender people serving.
Also, last month, 41 retired generals and admirals signed a statement saying “Transgender-inclusive service … has succeeded, while discrimination and double standards harm combat effectiveness by wasting talent and compromising military integrity.”
The military leaders called the Trump administration’s use of “military judgment” to defend its transgender troop ban a “pretext [that] risks inflicting harms that go well beyond” the transgender service issue.
The trouble started in July, 2017. President Trump tweeted his intentions and signed a “Presidential Memorandum on Military Service by Transgender Individuals.”
Four lawsuits were filed to temporarily prevent the president’s ban from taking effect.
In early 2018, then-Defense Secretary James Mattis proposed a compromise: Letting transgender people serve, but only if they didn’t transition and agreed to serve “in their biological sex,” which has been compared to “Don’t Ask, Don’t Tell.”
Mattis also wrote, “Transgender persons with a history or diagnosis of gender dysphoria are disqualified from military service,” except under certain limited circumstances.
Many consider that similar to the new policy.
In January, the U.S. Supreme Court lifted two of the injunctions that had been stopping the ban, and a Maryland district judge lifted the third in March.
As for the last injunction, two judges from the D.C. Circuit Court of Appeals issued differing opinions in Jane Doe v. Trump, which used the equal protection and due process clauses of the Fifth Amendment to temporarily stop the president.
Jennifer Levi, Transgender Rights Project Director of GLAD (GLBTQ Legal Advocates & Defenders), wrote, “The nationwide injunction prohibiting the ban from going into effect remains in place.” She expected the plaintiffs to have 21 days to file for a rehearing by the full D.C. Circuit bench.
But now, “Not only does the Trump-Pence transgender military ban violate the Constitution, but now the administration is also defying a court order. With brazen disregard for the judicial process, the Pentagon is prematurely and illegally rolling out a plan to implement the ban when a court injunction remains in place prohibiting them from doing so.”
On Feb. 27, five transgender troops testified to Congress. They said transitioning made them stronger, and recovery from pregnancy and shoulder surgery takes much longer.
Retired Air Force Gen. James N. Stewart, performing the duties of the undersecretary of defense for personnel and readiness, disagreed, saying “special accommodations” cannot be made for people with such a medical condition.
Rep. Anthony Brown (D-Md.) countered that same argument was used to keep blacks from integrating into the Army in 1948. He said banning people who have had gender dysphoria and transitioned is equivalent to banning transgender people.
“You’re transgender and only if you agree not to transition, then you can serve. That’s just like ‘Don’t Ask, Don’t Tell,’” he said.