LGBTQ rights supporters were quick late Monday to slam an agreement on major defense spending legislation for leaving out language overturning President Trump’s transgender military ban, but the measure retains some minor provisions for LGBTQ troops.
Although the House approved an amendment introduced by Rep. Jackie Speier (D-Calif.) as part of the fiscal year 2020 defense authorization bill to ensure transgender people can serve in the serve in the armed forces, the final $738 billion package House and Senate conferees unveiled late Monday excludes the provision.
However, the defense bill retains language based on an amendment introduced by Rep. Mark Pocan (D-Wis.) seeking to codify the process by which service members expelled under “Don’t Ask, Don’t Tell” can update their DD-214 paperwork to “honorable” if they had “other than honorable” or “dishonorable” discharges.
Additionally, the defense measure contains a provision along the lines of an amendment introduced by Rep. Anthony Brown (D-Md.) requiring the Defense Department to produce reports on waivers granted to transgender enlistees under the Trump ban.
Also Included as part of that provision is a paragraph encouraging the military to grant waivers to transgender people seeking to enlist in the armed forces in the same manner that would be granted to other applicants seeking waivers. That language goes beyond what the Brown amendment initially sought.
“In determining whether an applicant with a disqualifying diagnosis of gender dysphoria or history of gender transition treatment or surgery merits a waiver to permit his or her service in the military, the conferees encourage service — designated waiver authorities to consider such a waiver under the same circumstances as they would for an applicant who is not transgender, but has been diagnosed with analogous conditions or received analogous treatments, presuming the individual meets all other standards for accession,” the bill says.
Under the Trump policy, the military service service secretaries may delegate authority for waivers to no lower than a military service personnel chief. That’s different for authority for other waivers, which are delegated by lower-level officials. (A recent Washington Blade report found no waivers had been yet granted for transgender enlistment, raising questions about whether they’re, in fact, available.)
Although LGBT language is found in the defense bill that wasn’t introduced or approved by the Republican-controlled Senate, the inclusion of this language in final bill isn’t exactly a win for transgender advocates, who were seeking to overturn the transgender ban outright.
A coalition of organizations, including the Human Rights Campaign, National Center for Transgender Equality, GLBTQ Legal Advocates & Defenders, the Modern Military Association of America, National Center for Lesbian Rights, Lambda Legal, the American Civil Liberties Union and the San Francisco-based Palm Center, said in a joint statement they were “profoundly discouraged” by the defense bill.
“It is unconscionable that thousands of honorably serving transgender service members and their families will continue to live under the threat of discharge simply because of who they are,” the statement says. “This ban is based on bias, not evidence, and is opposed by the American people, military experts, and elected officials across the political spectrum.”
Modeled after the language in President Truman’s 1948 executive order desegregating the armed forces, the Speier amendment sought to overturn the transgender ban and, for the first time, make discrimination in the military against LGBT people and others prohibited under U.S. law.
Despite the exclusion of her amendment, Speier hailed the agreement on the defense bill on Twitter as a “landmark day for service members and their families, claiming victory over the inclusion of a provision allowing service members to sue for medical malpractice.
A landmark day for servicemembers & their families! The NDAA includes my partial Feres fix that, after 70 years, gives servicemembers who suffer medical malpractice at a military facility the right to compensation. Let’s continue the fight for justice! https://t.co/ixCfxtIAuA— Jackie Speier (@RepSpeier) December 10, 2019
An estimated 14,700 transgender people are currently serving in the armed forces. Although the transgender ban allows those who are currently serving to remain in the military, it prohibits in most cases transgender people from enlisting (unless they would serve in their birth gender); expels troops who obtain a diagnosis of gender dysphoria after the policy was put in place; and fosters a hostile climate for transgender troops already in service.
For the LGBT language the conferees did keep, the provisions are slightly different than the language either Pocan or Brown proposed.
For Pocan’s amendment expediting the process by which service members discharged under “Don’t Ask, Don’t Tell” could upgrade their discharge to an “honorable” status, the defense bill would clarify a service member denied this upgrade could seek an appeal under current law or defense policy.
Pocan told the Blade he’s “disappointed” the language overturning the transgender ban wasn’t included in the final bill and won’t vote for the legislation, but is nonetheless glad a provision along the lines of his legislation, the the Restore Honor to Service Members Act, was included.
“I have introduced a version of this bill in every Congress I have served and bringing it to a vote alone is a massive step forward for the LGBTQ movement and service members who have been wrongfully disrespected,” Pocan said. “The history of DADT has wrongfully stained the legacy of American servicemembers who proudly served their nation. It’s due time they receive the recognition, benefits and honor they deserve.”
According to Pocan, more than 100,000 Americans estimated to have been discharged from the military since World War II due to their sexual orientation and many of them were left with discharge statuses of “other than honorable,” “general discharge” or “dishonorable.”
For Brown’s amendment seeking a report on waivers granted to transgender people under the Trump ban, the Senate agreed to language that would modify the data elements in the report that would clarify it wouldn’t include personally identifiable information or protected health information.
As mandated in Brown’s amendment, the language requires the Pentagon to produce a report within 120 days after the enactment of the legislation, then annually for two years.
Christian Unkenholz, a Brown spokesperson, said the lawmaker is glad the amendment was included in the final bill, noting his boss has spoken out against the “misguided decision” to institute a transgender military ban.
“Obviously, we can’t everything that we want, but we’re happy this amendment was included to push the ball forward,” Unkenholz said.
Andy Blevins, executive director of the Modern Military Association of American, said the inclusion of the Brown and Pocan amendments are welcome news.
“While we are deeply disappointed Rep. Speier’s non-discrimination amendment was not included, we are pleased that Rep. Brown’s amendment and Rep. Pocan’s amendment are in the final version of the annual defense bill,” Blevins said. “Both of these amendments are important steps forward in advancing fairness and equality for the LGBTQ military community.”
Throughout the conference negotiations between the House and the Senate, transgender service had been a sticking point, although the major issue was whether or not to include language barring Trump from using defense funds to pay for his U.S.-Mexico border wall. (The measure ended up sidestepping the wall controversy.)
The dispute over the wall funding created such an impasse there was a question about whether Congress would fail to pass for the first time in a half-century. Senate Armed Services Committee James Inhofe (R-Okla.) introduced a “skinny” bill to move forward that avoided all major disputes, including the transgender ban. House Armed Services Committee Chair Adam Smith (D-Wash.) refused to support the measure, it ended up going no where and lawmakers returned to negotiations to produced the final product unveiled this week.
Earlier this year, a Democratic aide told the Washington Blade there were concerns Senate Democrats weren’t pushing hard for inclusion of the Speier amendment in the final version of the defense bill. It’s unclear if that remained the case for the entirety of the negotiations or was responsible for the omission in the final package.
Neither the office of Smith, who has expressed support for transgender service, nor Inhofe, who has express a desire to codify the transgender military ban into law, responded to the Washington Blade’s request on the exclusion of the Speier amendment.
Drew Hammill, a spokesperson for House Speaker Nancy Pelosi (D-Calif.), said his boos is “deeply disappointed” about the omission of the Speier amendment in the final defense bill.
“Despite bipartisan passage of it in the House, Republican leadership and the White House refused to adopt this language and end this shameful ban,” Hammill said. “Democrats will continue fighting President Trump’s cruel transgender service member ban.”