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Trump Signs Order Barring Transgender Service Members

Trump Transgender Military Ban

As anticipated, late yesterday afternoon President Trump formally sent instructions to the Defense Department reimposing the ban on transsexual soldiers in the military, but it’s unclear exactly how that ban will be enacted:

WASHINGTON — President Trump signed a long-awaited directive on Friday that precludes transgender individuals from joining the military but gives Defense Secretary Jim Mattis wide discretion in determining whether those already in the armed forces can continue to serve.

Mr. Mattis’s decisions will be based on several criteria, including military effectiveness and budgetary concerns, a senior White House official said in briefing reporters.

Left unclear was how many of the thousands of transgender service personnel estimated to be in the military might keep serving. By putting the onus on Mr. Mattis, the president appeared to open the door to allowing at least some transgender service members to remain in the military.

Dana W. White, the chief Pentagon spokeswoman, said that Mr. Mattis had received the guidance but did not indicate how he would proceed.

Mr. Trump abruptly announced the ban last month, helping to resolve a fight in Congress over whether taxpayer dollars should be used for gender transition and hormone therapy for transgender service members. Objections from conservatives had threatened a $790 billion defense and security spending package.

Mr. Mattis has six months to develop a plan to implement Mr. Trump’s directive, which also applies to the Department of Homeland Security, where the Coast Guard is housed.

The White House official, who spoke on the condition of anonymity under White House ground rules for the briefing, described the memo as a return to policies in place before the Obama administration moved last year to allow transgender people to serve openly in the military without fear of punishment.

The official also said that the military would no longer pay for sex reassignment surgeries unless withholding such funds would harm the health of someone already transitioning.

Mr. Trump’s directive precludes transgender people from joining the military unless Mr. Mattis, in consultation with the secretary of homeland security, “provides a recommendation to the contrary that I find convincing.”

The president surprised much of the Pentagon last month when he tweeted that the American military could not afford the “tremendous medical costs and disruption” of including transgender members.

Advocates for transgender service members vowed to push back, arguing that the president was disguising discrimination as concern for military readiness.

“Imagine, if you would, if the president tried to pull the same prank on Jewish soldiers or gay and lesbian soldiers or Chinese soldiers or African-American soldiers,” said Aaron Belkin, the director of the Palm Center, an organization that successfully lobbied in 2016 to lift the ban on transgender service in the military. “To pull the rug out from under a group of service members who have been defending our country is inconsistent with two centuries of American history.”

(…)

The directive requires Mr. Mattis to submit a plan by Feb. 21 for implementing the new policy, including how to address transgender individuals already serving in the armed forces.

In deciding whether any transgender service personnel can stay in the military, the directive says, Mr. Mattis must weigh considerations of “military effectiveness,” “lethality” and “budgetary constraints.”

“Until the secretary has make that determination, no action may be taken against such individuals,” adds the directive.

Late Friday night, Senator John McCain, Republican of Arizona and chairman of the Senate Armed Services Committee, said that the Pentagon should finish reviewing the impact of transgender recruits before any policy changes were made.

“It would be a step in the wrong direction to force currently serving transgender individuals to leave the military solely on the basis of their gender identity rather than medical and readiness standards that should always be at the heart of Department of Defense personnel policy,” Mr. McCain said in a statement.

Interestingly enough, the directive from the White House does not direct the Defense Department from dismissing transgender members of the military who have already revealed their status in reliance on the policy change that was announced by the Obama Administration last summer. It also does not specifically say that people must be dismissed from military service if it is discovered that they are transgender. At the same time, though, the law does place these people under a microscope and will no doubt cause them to fear that their careers could come to a swift end because of their decision to rely in good faith on the change in policy announced last year or if their status as transgendered is discovered notwithstanding their efforts to hide it. It also makes it unlikely that such persons will be able to advance in the military even if they aren’t dismissed from service. Of course, it’s possible that all of these things could happen, which is why the lawsuit that has already been filed against the ban is likely only the first of many that we will see regarding this new policy. While it’s hard to say what the ultimate fate of that litigation will be, the fact that there is absolutely no evidence that allowing transgendered Americans to serve openly in the military would have a deleterious impact on military readiness, unit cohesion, or national defense is a strong argument in favor of the argument that this ban is quite simply impermissible and a violation of the principle of equal protection of the laws.

As I noted yesterday, there is simply no evidence to support the idea that open service by transgender Americans would have a negative impact on the military. This is confirmed by a number of studies, including one concluded just last year by the RAND Corporation, as well as by the experiences of dozens of nations around the world that allow open service by transgender troops, including close American allies such as the United Kingdom, Germany, France, and even Israel. Additionally, the fact that there has been no measurable impact from allowing gays and lesbians to serve openly in the six years since the Don’t Ask, Don’t Tell policy was listed argues strongly that the results would be the same for transgender troops. Of course, Trump’s actions here have nothing to do with concerns about military readiness or the rights of transgender Americans and everything to do with pandering to the far-right base of the Republican Party that put him in office, which will no doubt cheer this decision as loudly as they are cheering his pardon of Joe Arpaio. I’d suggest that they should be ashamed of themselves, but these people clearly have no shame.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. CSK says:

    What happens if Mattis quietly disregards this? Will Trump bother to find out if the order is being implemented? Will he care? Will he even remember that he issued it?

    Like or Dislike: Thumb up 3 Thumb down 0

  2. Improvement says:

    This ban on new transgender troops makes perfect sense, as a retired lawyer explains at this link:

    http://libertyunyielding.com/2017/08/26/trump-orders-limits-new-transgender-troops/

    It not only promotes unit cohesion and thus military effectiveness (a compelling state interest), it also saves taxpayers money. As Stars and Stripes reported in September 2016, “The Pentagon expects to pay between $40,000 to $50,000 during the course of a service member’s life to treat gender dysphoria.”

    It is valid even if some view it as “discriminatory.” Courts have upheld military policies that discriminated in ways forbidden in civilian life, such as (1) banning religious headgear worn by members of minority religions (Goldman v. Weinberger, 475 U.S. 503 (1986) (upholding ban on wearing of religious caps, even though they are protected in civilian life by an antidiscrimination law, Title VII of the Civil Rights Act)), (2) upholding the male-only draft (Rostker v. Goldberg, 453 U.S. 57 (1981)), and (3) upholding the since-repealed ban on gays in the military. (Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996)).

    Courts have also upheld curbs on expression that would be protected outside the military — even on core political speech, such as requiring troops to obtain prior approval for petitioning activity on military bases. (Brown v. Glines, 444 U.S. 348 (1980)). So any restrictions on cross-dressing in the military as a form of “expression” are obviously constitutional under the First Amendment.

    Like or Dislike: Thumb up 2 Thumb down 8

  3. Improvement says:

    The ban is plainly constitutional. As one commentator put it, “Unit cohesion is one of several alternative rationales on which a transgender ban can be upheld. As Robin Beres of the Times-Dispatch [who is not a right-winger, and served 23 years in the military], points out, inclusion of transgender troops raises serious privacy issues that threaten unit cohesion:

    ‘Army training manuals developed to implement the new policy [of including transgender troops] are nearly incoherent. A PowerPoint presentation given to all soldiers begins … “We have to have access to 100 percent of America’s population for our all-volunteer force.”

    ‘The statement is ridiculous.

    ‘The Pentagon already claims 75 percent of American youth today are unfit for military service for many reasons, including obesity, drug use, criminal records, and health issues.

    ‘[A]n Army transgender training module … describes a potential scenario for a soldier who is undergoing a male-to-female gender-marker change (without sex reassignment surgery) and is placed in women’s barracks.

    ‘This new female — who still has her penis — will be using the women’s showers and bathroom facilities. The rules instruct all other female soldiers that they must be respectful of the new girl’s concerns and privacy issues. The transgender soldier, however, is neither required nor expected to modify or adjust her behavior in consideration of her new berthing mates.

    ‘The Army insists that dignity and respect must be shown to every service member. Yet, its bizarre demands that female-born females keep quiet — and pretend to ignore visible biology in a shower — are incredibly disrespectful to women soldiers.

    ‘The service is basically telling women that their humiliation and any other emotion they may experience are nothing compared with the feelings of a tiny fraction of service members.'”

    Like or Dislike: Thumb up 2 Thumb down 7

  4. Mikey says:

    @Improvement:

    This ban on new transgender troops makes perfect sense, as a retired lawyer explains

    Yeah? Well, I’m a retired Master Sergeant and I think the ban is bigoted horseshit.

    Like or Dislike: Thumb up 16 Thumb down 3

  5. Improvement says:

    @Mikey:

    When you write “think,” you apparently mean “feel” instead, since you have not made a convincing case that the ban lacks a rational basis, much less that it is unconstitutional.

    Feels are not a substitute for logic or proof.

    Saving money and protecting the privacy of the vast majority are justified by rational utilitarian concerns, in addition to military effectiveness. Thus, it is not “bigoted” to not recruit transgender members into the military.

    As an item I linked to noted,

    “There are sound medical reasons to disqualify from service those who identify as transgender, including surgeries and daily hormones which also interfere with scheduled military training and ability to be deployed. Diabetics cannot serve for similar reasons. The taxpayer money that would have been spent on costly and risky elective surgeries and decades of synthetic hormones that can cause cancer, in an effort to change sexual appearance, would be much better spent on treating our combat wounded soldiers and our veterans, and on buying equipment to keep our soldiers safe.”

    What is your counterargument to this? Do you even have one?

    The military apparently does not recruit people with diabetes. Do you agree with this policy? If not, under your own argument, aren’t you a bigot?

    Like or Dislike: Thumb up 2 Thumb down 8

  6. HarvardLaw92 says:

    @Mikey:

    Don’t feed the troll

    Like or Dislike: Thumb up 9 Thumb down 3

  7. Mikey says:

    @Improvement: Did I say “unconstitutional?” No, I said “bigoted horseshit.”

    Although it does fail the rational basis test, because it is based entirely on animus.

    You’re free to accept the opinion of some “retired lawyer” rather than that of a combat veteran who served 20 years, and since you apparently do, there’s obviously no point in continuing to discuss the matter. Good day.

    Like or Dislike: Thumb up 12 Thumb down 3

  8. Just 'nutha ig'nint cracker says:

    @HarvardLaw92: Amen.

    Like or Dislike: Thumb up 6 Thumb down 3

  9. Me says:

    Many military veterans, such as columnist Robin Beres of the Richmond Times-Dispatch, say the ban on transgender applicants is a sensible policy for the military to have. If Mattis adopts it (as expected), I will defer to his considered military judgment. The courts should do likewise, and uphold that judgment, as they did in the Supreme Court’s decisions in Rostker v. Goldberg, Goldman v. Weinberger, and Brown v. Glines.

    Like or Dislike: Thumb up 2 Thumb down 8

  10. Mister Bluster says:

    for Me:

    Ickle Me, Pickle Me, Tickle Me too
    Went for a ride in a flying shoe.
    “Hooray!”
    “What fun!”
    “It’s time we flew!”
    Said Ickle Me, Pickle Me, Tickle Me too.

    Ickle was captain, and Pickle was crew
    And Tickle served coffee and mulligan stew
    As higher
    And higher
    And higher they flew,
    Ickle Me, Pickle Me, Tickle Me too.

    Ickle Me, Pickle Me, Tickle Me too,
    Over the sun and beyond the blue.
    “Hold on!”
    “Stay in!”
    “I hope we do!”
    Cried Ickle Me, Pickle Me, Tickle Me too.

    Ickle Me, Pickle Me, Tickle Me too
    Never returned to the world they knew,
    And nobody
    Knows what’s
    Happened to
    Dear Ickle Me, Pickle Me, Tickle Me too.

    Thank You Shel Silverstien RIP

    Like or Dislike: Thumb up 0 Thumb down 0

  11. teve tory says:

    FB’s screwed-up algorithms just suggested I might want to join the private group “Basket of Deplorables”. Jesus, FB, what did I do that was in any way neo-Nazi?

    Like or Dislike: Thumb up 0 Thumb down 0

  12. James in Bremerton says:

    @Improvement: You will be losing this argument, eventually.

    And, you know it.

    Like or Dislike: Thumb up 1 Thumb down 2

  13. CSK says:

    @teve tory:

    I avoid FB, but my impression is that its data-mining function gloms onto buzzwords you mention in posting, no matter what the context, and uses that data to make suggestions. Did you write a post condemning the Deplorables, or neo-Nazis, or white supremacists? All that interests the data-miner is that you mentioned it.

    Like or Dislike: Thumb up 1 Thumb down 0

  14. teve tory says:

    I used to be in science, and most of my friends are either scientists or science-adjacent, so we’re a pretty liberal bunch by default, because science denial is a fundamental part of modern conservatism. And I didn’t flunk out of Middle School, so there’s no telling why FB suggested the Deplorable group to me.

    Like or Dislike: Thumb up 0 Thumb down 0

  15. Kylopod says:

    One of the things AI hasn’t licked yet is irony. (Not a big deal, many humans haven’t either.) The whole conservative meme of referring to oneself as a “deplorable” is a form of irony, and to add on to that, there’s at least a teensy chance that some liberals would create a group with that name with the intent of mocking conservatives. It’s not surprising this might all prove a little tricky for the algorithms to grok.

    Like or Dislike: Thumb up 0 Thumb down 0

  16. Bob The Arqubusier says:

    As I noted yesterday, there is simply no evidence to support the idea that open service by transgender Americans would have a negative impact on the military.

    I recall bringing up several points where transgender service members could have a negative impact on the military, and no one bothering to contradict them. I believe the points were something like this:

    1) Many people state that about 45% transgendered individuals between the ages of 18 and 24 have attempted suicide. Does it make a great deal of sense to admit them into a high-stress life (far more than a “job”) AND provide them with exceptionally powerful weapons?

    2) The best estimates I’ve seen say that gender reassignment treatment (surgery and recovery) takes about 8 months. During that time, the service member would, obviously, not be available for service. Would that time count towards their enlistment commitment, or would they still “owe” that eight months upon recovery?

    3) Post-surgical transgendered individuals need ongoing medication and treatment. That would be very difficult to provide in many military environments, meaning that they could not be deployed for many missions.

    4) Should a transgendered individual fail to serve their full commitment to the service, would they then be liable for the expense of their transgender treatment? I know that is the principle for graduates of the military academies who fail to fulfill their service requirements — they have to repay the costs of their education.

    Like or Dislike: Thumb up 1 Thumb down 3

  17. Bob The Arqubusier says:

    (mic drop)

    Like or Dislike: Thumb up 0 Thumb down 1