Trump Order Bans Transgender People Except Under Unspecified ‘Limited Circumstances’
The President issued an incredibly confusing order that contradicts the advice of his generals and is probably illegal.
POLITICO (“Trump moves to ban most transgender troops“):
President Donald Trump on Friday issued orders to ban transgender troops who require surgery or significant medical treatment from serving in the military except in select cases — following through on a controversial pledge last year that has been under review by the Pentagon and is being fought out in the courts.
The memorandum, which drew swift condemnation from gender rights groups, states that while the secretary of defense and other executive branch officials will have some latitude in implementing the policy, “persons with a history or diagnosis of gender dysphoria — including individuals who the policies state may require substantial medical treatment, including medications and surgery — are disqualified from military service except under limited circumstances.”
The memo also said that Secretary of Defense Jim Mattis, “in the exercise of his independent judgment, has concluded [the policies] should be adopted by the Department of Defense.” It added that “the Secretary of Homeland Security concurs with these policies with respect to the U.S. Coast Guard,” which would also be affected by the policy.
The decision comes after a number of top military officials over the past year– including most members of the Joint Chiefs of Staff — have gone out of their way to defend the thousands of transgender troops who are believed to be serving in the military.
But in a subsequent statement, the White House press office on Friday explained that the policy was “developed through extensive study by senior uniformed and civilian leaders, including combat veterans.”
The memorandum is bizarre on a number of fronts.
First off, it’s really weird for the President to sign a memo issuing an order but fobbing off the responsibility for doing so. Why explain that the policy is one “the Secretary of Defense, in the exercise of his independent judgment, has concluded should be adopted by the Department of Defense”? I get noting that input was taken from the affected departments. But it’s the commander-in-chief’s job to make the judgment. And it’s even weirder to emphasize Mattis’ “independent judgment.” Is that trying to say that Mattis made up his mind without being influenced by the President, yet further shifting the blame? Or are we to surmise that Mattis overrode the recommendations of the staffing process?
Second, aside from superseding his memorandum of August 25, 2017, “Military Service by Transgender Individuals,” it’s not clear what this order does. Sure, ”persons with a history or diagnosis of gender dysphoria — including individuals who the policies state may require substantial medical treatment, including medications and surgery — are disqualified from military service except under limited circumstances.” But what, exactly, are those circumstances?
The Secretary of Defense, and the Secretary of Homeland Security, with respect to the U.S. Coast Guard, may exercise their authority to implement any appropriate policies concerning military service by transgender individuals.
What’s an “appropriate policy”? Are transgender individuals banned or not?
This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
We’ve had numerous court rulings that would seem to argue that gender dysphoria creates a protected class. So, an order banning them while being implemented in a way consistent with the applicable law seems contradictory.
Finally, while it may seem intuitively obvious that integrating transgendered individuals would be disruptive and paying for reassignment surgery and medicine would be expensive, the only real study on the subject of which I’m aware, commissioned by the Defense Department and published by RAND in June 2016, found otherwise:
The Office of the Secretary of Defense asked RAND, a nonprofit research institution, to study the health care needs of this population, identify potential health care utilization and costs associated with extending health care coverage for transition-related treatments, assess the potential readiness impacts of allowing transgender service members to serve openly, and review the experiences of foreign militaries.
Because there have been no rigorous studies of the size or health care needs for either the U.S. transgender population or the transgender population serving in the military, the RAND study applies a range of estimates from available research to estimate the number of transgender individuals serving in the military.
The study estimates the number of transgender individuals currently serving in the active component of the U.S. military at between 1,320 and 6,630 out of a total of about 1.3 million service members. However, not all of these transgender service members would be expected to seek medical treatment related to their gender status or become nondeployable.
“Only a small portion of service members would likely seek gender transition-related medical treatments that would affect their deployability or health care costs,” said Agnes Gereben Schaefer, lead author of the study and a senior political scientist at RAND.
The study estimates that between 30 and 140 new hormone treatments could be initiated a year and 25 to 130 gender transition-related surgeries could be utilized a year among active component service members. Additional health care costs could range between $2.4 million and $8.4 million, representing an approximate 0.13-percent increase.
In terms of readiness, RAND estimates that 10 to 130 active component members each year could have reduced deployability as a result of gender transition-related treatments. This amount is negligible relative to the 102,500 nondeployable soldiers in the Army alone in 2015, 50,000 of them in the active component.
Eighteen countries allow transgender personnel to serve openly in their militaries. RAND researchers focused on the policies of four with the most well developed and publicly available policies on transgender military personnel: Australia, Canada, Israel and the United Kingdom.
In these militaries, a service member’s gender is considered to have shifted in terms of housing, uniforms, identification cards, showers and restrooms when a service member publicly discloses an intention to live as the target gender and receives a diagnosis of gender incongruence. However, physical fitness standards typically do not fully shift until the gender transition is medically complete. In no case did the RAND team find evidence of an effect on operational effectiveness, operational readiness or cohesion.
“The foreign militaries we studied have reported harassment and bullying incidents, but these effects have been mitigated by having clear policies and comprehensive training across their militaries,” Schaefer said.
So, we have a policy that not only contradicts the advice of all the sitting service chief and the only serious DOD-funded study on the matter but is probably illegal to boot. On the plus side, it’s sufficiently murky that it could be dismissed as a mere publicity stunt to keep the President’s base supporters happy.