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.

FILED UNDER: LGBT Rights, Military Affairs
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. OzarkHillbilly says:

    Also on the plus side, he gets to kick “f*gg*ts” **, which as I well recall was a favorite Saturday night entertainment for certain peoples growing up in certain times.

    ** noting that strictly speaking, this derogatory term doesn’t really apply anymore, only that in his diseased mind it probably applies to all “sexual deviants”.

  2. Hal_10000 says:

    Literally no one voted for Trump because they wanted this. I know a lot of Trumpists and not one has said, “You know what’s great about Trump? The transgender military ban!” This is Trump mistaking a tiny but vocal segment of the religious right for the voice of the country (in part because he is neither religious nor conservative). He thinks this will make him popular with the religious nuts and doesn’t care about the consequences because, after all, their just transgender people.

  3. wr says:

    I’m surprised Bungles hasn’t been here yet. I can save him the trouble:

    “I know you’re obsessed with Trump hatred, but doesn’t it bother you that these so-called soldiers have so little respect for the office of the president that they demand he accept that their gender identity is different from his rather than doing the right thing and simply adjusting to what he wants? You may think this is a blow against the evil Trump empire, but be careful what you wish for.”

  4. James Pearce says:

    @Hal_10000:

    He thinks this will make him popular with the religious nuts and doesn’t care about the consequences because, after all, their just transgender people.

    Not just the religious nuts. And what are the consequences? People march on Washington?

  5. de stijl says:

    @James Pearce:

    People march on Washington?

    Those people would be fabulous and very telegenic.

    (Okay, I’m conflating trans with drag which is sketchy at best, but just go with me on this, people!)

  6. de stijl says:

    There is a mindset amongst some people that if we expand rights, the undeserving will exploit that and game the new system to enrich themselves at our, the normal peoples’, expense.

    Life is a zero-sum game, and the only reason that trans people would join the military is the shot at free transition surgery. Obviously.

    And by acknowledging them we encourage more to follow.

  7. de stijl says:

    The fear that someone, somewhere is taking advantage of us drives most reactionary political behavior.

  8. Just 'nutha ig'nint cracker says:

    So basically, this translates into “Derp, derp, blather throw a crust over to Dreher at TAC?

  9. James Pearce says:

    de stijl:

    Those people would be fabulous and very telegenic.

    Nah, people dressed better in the 60s.

    “Fight for your lives before it’s someone else’s job.”
    -Emma Gonzalez

  10. de stijl says:

    @Just ‘nutha ig’nint cracker:

    Dreher is fascinating.

    You see the headline and you read the first paragraph. And the second. Your reaction is that this would not be my take on the matter, but dude is not a total reactionary predictable tool. So what the what, let’s see what happens in paragraph 3; ahh crap, he’s just reguritating P1, ingesting the vomitus, and then re-spewing it over and over and over for 10,00 words.

    You scroll down and see that there 18 more paragraphs each roughly 200 – 300 words in length that restate his first take with many allusions to or outright quotes of the last bit of argumentation he last latched onto as his precious lodestone. (My preciousss!)

    Oddly enough, there is an unknown reader that sent Dreher an e-mail that applies exactly to this scenario of which he will quote directly whilst eliminating any identifying location or personal information.

    Conveniently, you say? How gauche! Away with your unprovable assertions, good sir!

    Yes, 75% of my articles are based on “e-mails from readers” that I am honor-bound to obfuscate but echo exactly what I was going to write anyway. Convenient, that.

    Here is my take

    – the West is doomed because it is being overwhelmed by swarthy voices demanding an equal hearing.
    – this one young person said something I feel is impertinent or not fully nuanced to my world-view, therefore all Millennials and Gen-Zers are equally complicit in her heresy!
    – this one person on “The Left”said something I feel is impertinent or not fully nuanced to my world-view, therefore all mainstream Democrats are equally complicit in his outrageousness!
    – this one person somewhere in the LGBTQwerty world (did you see what I just did!? What with the Qwerty thing? I gored that sacred Leftist cow so ffing hard with that bon mot!) said something I feel is impertinent or not fully nuanced to my world-view, therefore all non-straight people should be stripped of any civil rights they currently have a claim to and should be shipped directly to a re-education camp where the “second chance” is code for a lobotomy like back in the pleasant 1950s where we could not even countenance this abomination. Oops! I’ve spoken my true feelings aloud and said too much. Whoopsy! Shh! [I will kill you if you tell on me!]

    Scan his current feed. How many of his posts fit these categories?

    I’ve been there. He presents as semi-moderate and approachable. Do not be fooled by his Corbusier specs! He hates you and salivates over your future torments in Hell. Not figuratively, literally. He absolutely hates you and fantasizes about your future suffering in literal Hellfire.

    He is a bad person that you should not invite into your reading life unless you are masochistic.

  11. de stijl says:

    Your comment is awaiting moderation.

    Moderator person. (Prolly James as you are the OP guy) I withdraw my request to delete this comment. You may release my stupid comment into the wild if you elect to.

    It fits, it works, and no one is ever really going to read it anyway. It’s a TL;DR take on Rod Dreher on a dead thread.