By Rafael Santa Maria (PO ’20)
Last Friday, the Department of Defense began implementing a new policy that effectively prevents transgender individuals from joining the military. Although the policy was announced in a Defense Department memorandum last month, enforcement began on April 12. This development follows efforts to curtail transgender military service by the Trump administration dating to July 2017, when President Trump announced via Twitter that, “the United States government will not accept or allow transgender individuals to serve in any capacity in the US military.” While this informal declaration initially took the Pentagon by surprise, since then the Trump administration has formalized the policy through a series of presidential memorandums and policy recommendations from former Secretary of Defense James Mattis.
Ultimately, these presidential memos and Defense Secretary recommendations culminated in the Defense Department’s current policy, enforced for the first time last week. In the March memo, the DoD emphasizes that, “Service in the Military Services is open to all persons who can meet high standards for military service and readiness without special accommodations,” and expresses that individuals will not be barred from military service “solely on the basis of his or her gender identity.”
Nevertheless, the memo prevents all individuals diagnosed with gender dysphoria by a military doctor or possessing a history of gender dysphoria from serving. Additionally, the memo prevents individuals from joining if they have ever received medical treatment “associated with gender transition.” The memo underscores that transgender people who are currently serving in the military and have been diagnosed with gender dysphoria will still be allowed to serve.
Additionally, the new policy will not ban transgender individuals who have been diagnosed with gender dysphoria if they have been medically “stable” for at least 36 months and do not require hormone treatment or sex reassignment surgery. But, even if aspiring transgender service members meet these requirements, they are required to serve as a member of their biologically determined sex. Essentially, this means that transgender service members will be forced to serve in a gendered role that goes against their gender identity.
Despite the DoD’s attempts to make the policy appear solely pragmatic and not transphobic, these efforts to occlude transgender military service have faced numerous legal challenges. Since Trump first announced his intentions on Twitter in 2017, four lawsuits have been filed by civil rights organizations such as the ACLU on behalf of transgender service members. Each lawsuit resulted in the implementation of preliminary injunctions—court orders that temporarily halted enactment of the Trump administration’s policies.
However, as of March 2019, two of the injunctions were lifted by the Supreme Court and a third was lifted by the District Court of Maryland. The fourth temporary injunction expired before the DoD began enforcing its new policy on April 12.
Still, despite this setback, the four cases are pending in court. LGBTQ advocates and the civil rights attorneys representing the plaintiffs still hope that the cases will lead to a favorable ruling for transgender rights. Shannon Minter, the legal director of the National Center for Lesbian Rights, reflected this sentiment, stating that, “Just because an injunction is lifted, doesn’t mean the case is over.”
Furthermore, LGBTQ+ activists have turned their attention to Congress for a solution. On February 28, five transgender service members testified in front of Congress to express that their gender transition did not adversely affect their work. A month later on March 28, the House of Representatives passed a non-binding resolution that decried the new transgender policy.
Nonetheless, members of Congress have not expressed specific plans to pass legislation overriding the Trump administration’s policy. Coupled with the uncertainty regarding the timing and outcome of the four pending cases, it seems likely that Trump’s policy will proceed without legitimate opposition for the time being.
However, while it is too early to tell if the policy will be struck down either by congressional legislation or a court decision, it is also too early to conclude that Trump’s exclusionary efforts will succeed in the long term. As of now, one can only conclude that the right of transgender people to serve in the military remains temporarily undetermined—for better or worse.