As the three-year anniversary approaches of President Trump tweeting he’d ban transgender people from the armed forces “in any capacity,” his administration is showing no signs of reconsidering the policy.
White House Press Secretary Kayleigh McEnany dodged on Monday when asked by the Washington Blade whether Trump would reconsider the ban in the wake of a letter from 116 lawmakers led by Rep. Suzan DelBene (D-Wash.) calling on the administration to lift the anti-transgender policy.
Instead, McEnany enumerated other initiatives she said demonstrates the administration is supportive of the LGBTQ community.
“I haven’t talked to him about that specific policy, but this president is proud that in 2019 we launched a global initiative to end the criminalization of homosexuality throughout the world,” McEnany said. “He has a great record when it comes to the LGBT community. The Trump administration eased a ban on blood donations from gay and bisexual men and he launched a plan to end the AIDS epidemic by 2030, so we’re very proud of our achievements.”
It should be noted for one of those initiatives, easing the ban on gay blood donations to require a 3-month period of abstinence as opposed to a 12- month period, Trump distanced himself from the change when asked about it by the Blade, saying he “didn’t know anything” about it.
As the Blade pointed out, the ban on transgender service — which Trump directed the Pentagon to implement via tweet on July 26, 2017 — flies in the face of polls showing upwards of 70 percent of Americans support transgender service, major medical and psychological groups saying there’s no problem with it and an estimated 14,700 transgender service members grandfathered in under open service in the final year of the Obama administration.
Moreover, the transgender ban is increasingly unlikely to survive judicial scrutiny after the recent Supreme Court decision in Bostock v. Clayton County, which determined anti-transgender discrimination is a form of sex discrimination under the law.
Although no law bars sex discrimination in the U.S. armed forces, laws enabling sex discrimination are subject to heightened scrutiny under U.S. legal jurisprudence. Now that the Supreme Court has determined anti-trans discrimination is a form of sex discrimination in the workforce, that logic should apply to all anti-transgender policies across the board, including the transgender military ban.
McEnany, a Harvard law graduate, downplayed the Bostock’s ruling implications on the transgender ban by citing the dissent from U.S. Associate Justice Brett Kavanaugh, even though dissents have no bearing on U.S. legal jurisprudence.
“I have no updates for you, but several of the events that you cited, like the Supreme Court ruling, I would refer you back to Justice Kavanaugh, who said, ‘We are judges, we’re not members of Congress. Instead of a hard earned victory won through the Democratic process, today’s victory is brought about by judicial dictates,’” McEnany said. “So we’ll always stand on the side of correct statutory interpretation.”
Lucas Acosta, a spokesperson for the Human Rights Campaign, said in a statement McEnany “is living in a delusion” if she thinks the Trump administration is pro-LGBTQ.
“They have issued rules sanctioning discrimination against LGBTQ people, particularly transgender people, in healthcare programs and activities,” Acosta said. “They have ignored anti-LGBTQ atrocities in Chechnya and anti-trans violence here at home. They have banned trans people from serving in the military and turned away trans children with civil rights complaints from the Department of Education. They have endorsed allowing businesses to discriminate against LGBTQ people solely because of who they are or who they love. They are denying trans people equal access to emergency shelters, needlessly and cruelly putting one of the most vulnerable groups in the country in greater danger.”
The Defense Department has insisted the transgender military ban is not a ban, but a medical-based policy applying to all service members, pointing out they’re free to identify as transgender and remain in the armed forces.
But the policy, which went into effect in April 2019, requires the discharge of any service member who’s diagnosed with gender dysphoria, a defining characteristic of being transgender, or seeks transition-related care. Individuals with a history of gender dysphoria can only enlist if they’re willing to serve in accordance with their sex designated at birth.
The ban has an exemption to allow transgender service members to continue serving if they came out when open service was instituted in 2016 under the Obama administration. Additionally, the policy allows senior defense officials to grant waivers to transgender individuals facing discharge wishing to enlist in the armed forces.
DelBene responded to McEnany’s dodge on the transgender military ban in a statement to the Washington Blade by reasserting the policy is unlawful after the Supreme Court ruling.
“Why doesn’t the White House have a justifiable reason to continue the ban on transgender service members? Because it’s an indefensible policy,” DelBene said. “The Supreme Court recently affirmed that workplace discrimination based on gender identity and sexual orientation is unconstitutional. This should apply to military service as well. Thousands of transgender service members have already served their country with pride and distinction. This ban should be eliminated immediately.”