With court orders barring President Trump from enforcing his transgender military ban out of the way, the Defense Department late Tuesday unveiled its plan to make the policy a reality, announcing it would begin April 12.
A 15-page memo signed by David Norquirst, who’s performing the duties of deputy secretary of defense, spells out the timeline, procedures and potential exemptions for implementing the plan ordered by Trump and created by former Defense Secretary James Mattis.
As stated on the first page of the memo, the new policy “is effective April 12, 2019.” On the date, the policy of open transgender service as implemented June 30, 2016 during the Obama administration will come to an end after nearly three years.
The memo takes great pains to demonstrate the policy isn’t a ban because it allows transgender people to enlist, provided they have no diagnosis of gender dysphoria and are willing to serve in their biological sex.
“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,” the memo says.
The memo also includes an exemption to the ban in certain circumstances. These cases include a transgender person with gender dysphoria who enters into a contract to enlist before the new policy takes effect and has remained stable in their gender identity for 18 months.
“A history of gender dysphoria is disqualifying, unless, as certified by a licensed mental health provider, the applicant has been stable without clinically significant distress or impairment in social, occupational or other important areas of functioning for 18 months,” the memo says.
As outlined in the Mattis plan last year, that provision would suggest transgender people in the military who came out during the current policy would be able to stay in the armed forces.
According to the Williams Institute at University of California, Los Angeles, an estimated 15,500 transgender people are in the armed forces. A 2016 RAND Corp. study came up with a smaller number, estimating between 1,320 to 6,630 are currently on active duty.
Transgender people who obtain an exemption also appear to be eligible for transition-related care, including gender reassignment surgery, through the military health care system.
“Service members who are exempt may continue to receive all medically necessary treatment, as defined in DoDI 1300.28,” which is the policy outlined during the Obama administration when former Defense Secretary Ashton Carter first implemented transgender military service.
Individuals won’t be eligible for an exemption, however, in other situations, such as having “a history of cross-sex hormone therapy or a history of sex reassignment or genital reconstruction surgery is disqualifying.”
Moreover, a waiver system seems to be part of the policy. These waivers will be granted “in whole or in part, to the requirements in this attachment in individual cases,” the memo says.
Transgender advocates shredded the plan as a discriminatory effort to prohibit qualified individuals from joining the armed forces.
Harper Jean Tobin, director of policy for the National Center for Transgender Equality, said in a statement the policy represents a “looming purge” and “an unprecedented step backward in the social and civil progress of our country and our military.”
“Throughout our nation’s history, we have seen arbitrary barriers in our military replaced with inclusion and equal standards,” Tobin said, “This is the first time in American history such a step forward has been reversed, and it is a severe blow to the military and to the nation’s values.”
Aaron Belkin, director of the San Francisco-based Palm Center, told the Washington Blade the waivers to the ban aren’t significant and the policy as a whole amounts to “Don’t Ask, Don’t Tell.”
“This is a ban that affects all transgender troops in a similar way that ‘Don’t Ask, Don’t Tell’ affected gay and lesbian troops,” Belkin said. “Now we know that during ‘Don’t Ask, Don’t Tell,’ that didn’t mean that every gay and lesbian person was fired and the same phenomenon is going to be true here, where the transgender ban will burden all transgender troops, but that doesn’t mean they’ll all be fired.”
Belkin estimated 10 percent of transgender troops currently in the military have received a diagnosis of gender dysphoria and said “those folks are grandfathered in under the new policy.”
“But it’s really important to remember for those people, they are serving under a double standard that applies only to them, and they’re serving at the discretion at the secretary of defense,” Belkin said. “For all other service members, they have basically job protections. For trans troops, if the secretary decides tomorrow, we don’t want grandfather clause to apply anymore, then trans troops are out.”
The Pentagon unveiled the policy on the same day the National Center for Lesbian Rights and GLBTQ Advocates & Defenders filed a brief in the D.C. Circuit Court of Appeals against its implementation, arguing one court injunction remains in place against the Trump policy.
Jennifer Levi, GLAD’s transgender rights project director, said in a statement the implementation of the Pentagon’s policy was unlawful.
“Not only does the Trump-Pence transgender military ban violate the Constitution, but now the administration is also defying a court order,” Levi said, “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.
The Pentagon unveiled the policy shortly after the House Armed Services Personnel Subcommittee, chaired by Rep. Jackie Speier (D-Calif.), held a hearing where transgender military service members testified for the first time and expressed a commitment to service.
Speier in a statement slammed Trump and his administration for moving forward with a policy undermining and disregarding the service of those troops.
“I would like to know what it is that the President is so afraid of? Transgender troops have served for decades and carried out multiple deployments, including Afghanistan, Iraq and Syria, to protect our country and freedoms,” Speier said. “These tough, brave servicemembers have never used bone spurs as an excuse to dodge their duty and service to our country. We owe them our gratitude, not government-sanctioned discrimination. This policy is malicious, demeaning and destructive and it does not serve our country’s interests. I will fight it with every fiber of my being.”
Pending before the U.S. House is legislation Speier introduced that would block the transgender military ban. Sen. Kirsten Gillibrand (D-N.Y.) has introduced a companion bill in the U.S. Senate.
Tobin called on Congress to take action and reverse the Pentagon in the aftermath of the unveiling of the new policy.
“The Trump Administration is built on demonizing minority groups; reversing the civil rights gains of immigrants, people of color, women, and the LGBTQ movement will forever remain the hallmarks of their time in office,” Tobin said. “That is why Congress must act now and secure the fate of nearly 15,000 transgender troops. We cannot let an incompetent administration guided by a petulant bigot stand as the mascot of our time. History is watching Congress and will judge them harshly for inaction. That is why we must act swiftly to protect transgender troops, our military, and the dignity of our own legacy.”