January 25, 2021 at 11:41 am EST | by Chris Johnson
Biden signs EO to undo Trump’s transgender military ban
President Joe Biden has signed an executive order to reverse the transgender military ban. (POOL PHOTO courtesy of the United States Senate Press Photographers Gallery)

President Biden has signed an executive order that reverses the Trump administration’s policy against transgender military service and prohibits discharges based on diagnoses of gender dysphoria, but stops short of explicitly stating transgender people will be allowed to enlist in the armed forces.

Biden signed the executive order early Monday afternoon in the White House Oval Office next to Gen. Lloyd Austin, who was recently confirmed as secretary of defense.

“This is reinstating a position that previous commanders and — as well as the secretaries have supported,” Biden said. “And what I’m doing is enabling all qualified Americans to serve their country in uniform, and essentially restoring the situation as it existed before, with transgender personnel, if qualified in every other way, can serve their government in the United States military.”

The executive order reverses policy instituted by former President Trump, who tweeted in 2017 he’d ban transgender people from the armed forces “in any capacity,” was expected. Biden had told the Dallas Voice as a presidential candidate he’d reverse the policy on Day One of his administration.

Before Trump issued his ban, the Obama administration under former Defense Secretary Ashton Carter had lifted decades-old regulations against transgender military service, prohibiting discharges of service members based on gender dysphoria. Transgender enlistments, however, were put on pause until the next administration.

Trump overrode the changes entirely with a new ban. After his tweet, former Defense Secretary James Mattis subsequently issued a report advising against transgender military service, which the Defense Department then implemented as policy at the direction of Trump.

According to the Biden fact sheet, the executive order will immediately halt any discharges from the armed forces based on gender dysphoria. A 2014 report from the Williams Institute estimated 15,500 transgender adults are serving in the U.S. military, including 8,800 on active duty and 6,700 in the National Guard or Reserves.

“Simply put, transgender service members will no longer be subject to the possibility of discharge or separation on the basis of gender identity; transgender service members can serve in their gender when transition is complete and the gender marker in the Defense Enrollment Eligibility Reporting System (DEERS) is changed and transgender service members should know that they are accepted throughout the U.S. military,” a White House fact sheet on the executive order says.

But the order is unclear about whether a service members with the diagnosis will be able to serve as they wait to complete initial transition-related care.

Further, the order doesn’t address whether individuals who aren’t in the military, but seeking to enlist, will be able to accede if they have a diagnosis of gender dysphoria or obtained transition-related care, which were disqualifying factors under the Trump administration policy.

Finally, the executive order gives the Defense Department and the Department of Homeland Security, which oversees the Coast Guard, a timeframe of 60 days to report on implementation and allows “consultation with the Joint Chiefs of Staff” to achieve the goals of the order.

Also not clear from the executive order itself is whether the U.S. military will draw on government funds to pay for transition-related care, including gender reassignment surgery, for transgender service members.

Austin, however, indicated in a statement on the executive order would lead to a policy allowing transgender civilian to enlist if they meet other standards.

“The department will immediately take appropriate policy action to ensure individuals who identify as transgender are eligible to enter and serve in their self-identified gender,” Austin said. “These changes will ensure no one will be separated or discharged, or denied reenlistment, solely on the basis of gender identity. Prospective recruits may serve in their self-identified gender when they have met the appropriate standards for accession into the military services.”

Austin also indicated transition-related care would be “available” to U.S. service members, implying the U.S. government would pay for it as part of the military health care system.

“This revised policy will also ensure all medically-necessary transition related care authorized by law is available to all service members and will re-examine all cases of transgender service members that may be in some form of adverse administrative proceedings,” Austin said.

However, no firm timeline exists for instituting the changes, other than the 60-day deadline for when the Defense Department and Department of Homeland Security must produce a report for the White House. Further, the line about “consultation with the Joint Chiefs” may complicate the process, given Army Chief of Staff Gen. James McConville and Marine Corps Commandant Gen. David Berger have hinted they believe transgender service would have a negative impact on readiness.

The 60-day period to produce a report on the implementation changes, in any event, flies in the face of a memo issued last year by the San Francisco-based Palm Center, which found Trump’s policy could be reversed in 30 days.

Aaron Belkin, director of the Palm Center, nonetheless maintained in a statement to the Washington Blade on Monday he has faith the executive order would lead to inclusive service for transgender people.

Today is a historic day,” Belkin said. “President Biden pledged that he would lift Trump’s transgender ban at the beginning of his administration, and that is exactly what he did. The restoration of inclusive policy will promote military readiness, and is a victory of evidence-based policy over prejudice.”

Josh Block, senior staff attorney with the American Civil Liberties Union’s LGBT & HIV project, said in a conference call with reporters the executive order — as well as earlier LGBTQ directives — aren’t “self-executing in that what the president says has to be implemented through the Department of Defense.”

“The original service policy was implemented through something called a directive-type memorandum,” Block said. “That is also how the Trump rescission of that policy was implemented. So, we are expecting similar directive type memorandum to be issued by the Department of Defense as soon as feasible, which we hope is in the very, very, very near future.”

Block, however, said on the conference call based on the executive order itself isn’t clear about transgender enlistments is “one of the things that I think has raised questions for some folks,” although he predicted the Biden administration would ultimately make it happen.

“We obviously have lawsuits going on as well as many other organizations do,” Block said. “And we have every reason to expect that divided administration will keep its promise to make sure that this unconstitutional ban is lifted as quickly as possible.”

LGBTQ advocates, however, were effusive in their praise for executive order, which said they demonstrates Biden’s supports the LGBTQ community in contrast to years of attacks under Trump.

Alphonso David, president of the Human Rights Campaign, said in a statement the executive order, coupled with the directive implementing the Supreme Court’s decision against anti-LGBTQ discrimination, demonstrates Biden is making good on his campaign promises to LGBTQ people.

“The greatest military in the world will again value readiness over bias, and qualifications over discrimination,” David said. “The order follows the Biden administration’s commitment to LGBTQ equality, including the issue of a substantive LGBTQ executive order on Day One that implements the Supreme Court’s Bostock ruling.”

Sarah Kate Ellis, CEO of the LGBTQ media watchdog GLAAD, said in a statement GLAAD “salutes transgender service members, their courage and their sacrifice.”

“The American people, military leaders, and service members themselves, all overwhelmingly support transgender military service,” Ellis said. “They know that brave trans patriots have served throughout history and continue to serve honorably and capably, defending our country. By prioritizing an end to this discriminatory, unjustified ban, President Biden has fulfilled a campaign promise and is making our military stronger and more unified.”

The anti-LGBTQ Family Research Council, however, condemned the move in a statement as diverting the military away from its mission.

“In one of his first acts as commander-in-chief, President Biden is redirecting the military’s focus from where it has been and where it belongs — fighting and winning wars,” Tony Perkins, president of the Family Research Council, said. “Political correctness doesn’t win wars, but the president is indulging dangerous and unproven theories that have the potential to undermine national security.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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