• Daibik Chakraborty

New Decision Made on the Status of Transgender Service Members

Updated: Aug 24, 2020


The “Don’t Ask, Don’t Tell” military medical policy was put to an end on September 20, 2011 and it was the first step taken to expand the scope of military recruits. This medical policy outlined psychosexual disorders, including homosexuality, and disallowed anyone who seemed to inhibit characteristics of this disorder. With the ending of this policy, gay, lesbian, and bisexual service members were allowed to serve openly. However, this did not change any military medical policies that barred transgender people from serving. In June 2016, the Obama Administration implemented nationwide injunctions that finally opened the military up to the transgender community.


However, the ability of transgender people to enlist and serve has been swiftly put to an end again with a recent U.S. Supreme Court decision.


On July 2017, President Trump issued a twitter message that stated:


After consultation with my generals and military experts, please be advised that the United States government will not accept or allow transgender individuals to serve in any capacity. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.

The President’s intent was to reverse the Obama Era policy that allowed transgender people to openly serve as well as have the cost of gender reassignment surgery be paid by the government. The main issue that the President and the Justice Department wanted to resolve, in their perspective, was the detriment of efficiency and lethality of the U.S. Armed Forces caused by needs of transgender service members that need to be taken care of.


Following the June 2016 Obama policy, then Defense Secretary Ashton B. Carter stated that the pentagon will update the medical policies to allow those with gender dysphoria to enlist no later than July 1, 2017. Furthermore, Carter stated that allowing transgender service members would open the scope for better talent. However, the day before the deadline, General Mattis declared that the deadline was postponed by six months as the Department of Defense would be looking further into the issue.


In August 2017, Trump released an official Presidential Memo that gave the defense secretary the authority to decide the fate of transgender services members. Legal battle in lower courts ensued, and on October 2017, Federal Judges declared that the military must allow transgender people to start being recruited by January 2018. Judge Colleen Kollar-Kotelly stated that the ban deprived transgender people of their fifth amendment rights. The Pentagon did not refuse this order.


On March 2018, General Mattis instituted a new policy that would allow transgender service members to stay only if they served under their biological sex and did not seek medical treatment for gender-reassignment. It is stated that while the Mattis’ plan bans transgender people from being recruited, it does not encompass all transgender people as many transgender people do not have gender dysphoria or desire to transition to a specific gender. The exact exceptions to his policy are as follows:


Those who have been stable under their biological sex for 36 months before joining the military;
Transgender members who inhibit gender dysphoria but do not seek medical assistance for gender reassignment;
Transgender members who serve under their biological sex

Several district court judges in California, D.C., and other states blocked this policy as they stated it was an unconstitutional basis of discrimination. The decision of the district courts was overturned in the District of Columbia Circuit Court of Appeals. The Circuit Court believed it was unjust to block the pentagon from executing their military plans, especially since their judgement is grounded on a professional basis from “appropriate military officials.”


As of January 22, 2019, the U.S. Supreme Court officially lifted national policies that allowed transgender people to join the military. It was a 5-4 vote, with the majority decision coming from the conservative justices. This decision formally gives the pentagon powers to block transgender people from joining the military. The Court’s decision is not based on the legality of the ban nor the President’s authority to issue it, rather about its enforcement. In addition, the Court did not comment on whether or not sexual discrimination laws listed in the Civil Rights Act of 1964 applied to sexual orientation.


It is important to note that this decision was a grant of stay of decisions made in lower courts that would lift the ban instituted by Mattis. A “grant of stay” essentially states that a decision made in a lower court will not affect any current policy. The cases involved in the lower court decision were Trump v. Karnoski and Trump v. Stockman. Currently, these cases being tried in the U.S. Court of Appeals of the 9th Circuit.

 

https://williamsinstitute.law.ucla.edu/wp-content/uploads/Transgender-Military-Service-May-2014.pdf

https://www.foxnews.com/politics/supreme-court-rules-pentagon-can-limit-transgender-military-service-while-lawsuits-continue

https://www.npr.org/2019/01/22/687368145/supreme-court-revives-trumps-ban-on-transgender-military-personnel-for-now

https://www.washingtonpost.com/politics/courts_law/supreme-court-allows-trump-restrictions-on-transgender-troops-in-military-to-go-into-effect-as-legal-battle-continues/2019/01/22/e68a7284-1763-11e9-88fe-f9f77a3bcb6c_story.html?utm_term=.629e789a03a3

https://www.nbcnews.com/politics/supreme-court/supreme-court-declines-take-daca-transgender-cases-n961196