Trump’s Military Transgender Ban, Take Two

By Daisy Ni (PO ’21)

President Trump’s first ban on transgender service members in our military, released in a firestorm of Tweets late last year, took the nation by surprise by its suddenness. Although his ban has since been blocked by four separate federal courts—a happy victory for transgender troops and civil right advocates—he has now proceeded with a second attempt at restricting transgender people from serving. Under Trump’s new policy, transgender people without a history or diagnosis of gender dysphoria—discomfort one experiences because of their assigned sex—can serve in their biological sex. Those that do experience gender dysphoria, or require or have undergone gender transition, are prohibited from enlisting. This second attempt, however, does not seem to be able to escape the challenges faced by the first, and may fail on similar grounds. In fact, critics accuse Trump of attempting to repass what is substantially the same ban under a new disguise.

The White House has claimed that “accommodating gender transition could impair unit readiness, undermine unit cohesion as well as good order and discipline by blurring the clear lines that demarcate male and female standards and policies where they exist.” Defense Secretary Mattis has asserted that allowing transgender people to serve would amount to an exemption of certain mental, physical, and sex-based standards. The White House has also cited disproportionate costs with accommodating transgender service members.

Multiple federal courts had issued preliminary injunctions to keep the first ban from taking effect, concluding that Trump’s policy was unconstitutional. According to the rulings, federal judges found that the original ban was likely to infringe upon the Fifth Amendment rights granted individuals equal protection under the law. Specifically, the court for the District of Maryland blocked the administration’s proposal to deny funding for sex-reassignment surgeries, asserting that the such a policy would violate members’ right to medical care and that transgender service members were “already suffering harmful consequences” from Trump’s Tweets. The second attempt, targeting subpopulations of the transgender community, does not take into account the issues that plagued the first, and does nothing to combat the previous court conclusions.

Additionally, there is a multitude of evidence contrary to the Trump administration’s reasons of justification for both bans. A RAND study commissioned by the Obama administration in 2016found that there would be “little or no impact” on unit cohesion, operational effectiveness, or readiness. Additionally, RAND found that extending gender transition-related healthcare coverage to transgender personnel would have “minimal impact on… health care costs” for the Pentagon. The study estimated that health care spending would increase only by 0.04 to 0.13 percent. Additionally, examining the eighteen foreign countries that allow transgender troops to serve openly reveals that none reports negative effects. In fact, commanders in Canada, the country RAND researched most extensively, documented that “the increased diversity improved readiness by giving units the tools to address a wider variety of situations and challenges.”

Furthermore, Trump’s second attempt at a transgender ban reveals the administration’s fundamental misguided understanding of transgender individuals. The report released by the Department of Defense outlining the proposal questions whether transition-related treatments can genuinely help transgender individuals. It states that there is “overall lack of high quality scientific evidence demonstrating the extent to which transition-related treatments… remedy the multifaceted mental health problems associated with gender dysphoria.” However, although transition is in itself not a cure, it has scientifically proven to be effective at alleviating gender dysphoria and its accompanying symptoms. By forcing transgender individuals to only be able to serve in their biological sex and explicitly discouraging transition-related medical care, the new policy would force them to continue living with treatable symptoms. Trump’s ban essentially questions the legitimacy of gender dysphoria by refusing to take seriously their concerns and symptoms, as well as the legitimacy of the transgender identity as a whole.

Critics also note that the Trump administration’s transgender ban carries similarities with the 1994 “Don’t Ask Don’t Tell” directive (DADT), both in its aspired effects as well in its line of justification: essentially, transgender service members who do not voice any statements amounting to what could be perceived as gender dysphoria are allowed to remain in service. As such, it is important to note that DADT was found unconstitutional by a federal court prior to its repeal by the Obama administration. The court found that DADT violated not only the guarantee of substantive due process under the Fifth Amendment, but also the free-speech rights protected under the First Amendment, as well. As the litigation proceeds, all the historical precedent become relevant.

Ultimately, President Trump’s announcement does not change current regulations. The Pentagon is abiding by the court blocks, and the Department of Defense will continue to comply with the injunctions and assess and retain transgender service members. Despite its limited effect, the proposed ban reveals a lot regarding President Trump’s attitudes toward the LGBT community and the perceived prejudices of the administration. It goes without saying that transgender service members have been protecting the United States honorably for decades, and now is not the time—nor is it ever—to undermine and question their commitment and service for the country.

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