The Battle Over the Military’s Transgender Policy Is Far from Over

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A federal court temporarily blocks the White House transgender ban, but the need for a watchful eye remains.

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Earlier this week, a federal judge temporarily blocked the military from carrying out major parts of the White House-directed ban on transgender service members, ruling that current and aspiring transgender service members would likely have their Fifth Amendment rights violated. Although the judge’s ruling puts the entire ban in jeopardy, the story is far from over because the judge did not provide for a complete and permanent victory for the transgender litigants and appeals are likely. So the saga continues for transgender service members.

To recap: In July 2017, President Donald Trump tweeted that “the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. military.” Confusion reigned. Was this a direct order? Should the U.S. Department of Defense act on this tweet immediately?

Following internal discussions, the Pentagon effectively demurred, stating, “we don’t execute policy based on a tweet.” Meanwhile, currently serving transgender service members were left waiting for a month while the White House drafted official guidance on what, exactly, the President’s tweet meant. In August, the White House finally issued formalized guidance in the form of a Presidential Memorandum to the Secretaries of Defense and Homeland Security with the subject, “Military Service by Transgender Individuals,” which established what was on track to be a full transgender service member ban by March 23, 2018.

Four days following the issuance of the Presidential Memorandum, Secretary of Defense James Mattis released his own statement on transgender service members, announcing that “current policy with respect to currently serving members will remain in place.” Confusion once again followed, with some national media outlets erroneously reporting that Mattis was not following the White House memo. But upon closer review, it was clear that Mattis’s statement was aligned with the Presidential Memorandum. A couple of weeks later, the Defense Department issued important Interim Guidance that, among other things, reaffirmed that every service member will be treated with dignity and respect.

So, where do we go from here? The Presidential Memorandum identified three key dates that, if allowed to go forward, will have an outsized impact on the estimated thousands of transgender service members currently serving. In addition, in both Houses of Congress, legislators have drafted bills that would bar the Pentagon from involuntarily separating or denying reenlistment to members of the armed forces solely on the basis of their gender identities.

Various groups have filed lawsuits challenging the constitutionality of the ban—including the lawsuit that resulted in this week’s temporary court order. But the appellate process continues and considerable uncertainty remains. If the injunction is lifted, the three key milestones outlined in the Presidential Memorandum would be rapidly approaching.

First, the Presidential Memorandum directed the Defense Department to stop transgender accessions into the military on January 1, 2018, unless the Secretary of Defense—after consultation with the Secretary of Homeland Security—provides a recommendation that the President finds convincing. The federal court enjoined this part of the Presidential Memorandum.

Second, the Presidential Memorandum required Mattis—in consultation with the Secretary of Homeland Security—to submit a comprehensive transgender implementation plan in accordance with the White House memo by February 21, 2018. Significantly, this plan must determine “how to address transgender individuals currently serving in the U.S. military.” This is, in my estimation, the most difficult issue, as numerous transgender service members relied upon the earlier Obama-era guidance that allowed open transgender service. Indeed, the proposed ban raises fundamental issues of fairness for honorably serving transgender personnel who in good faith relied on earlier guidance permitting open service. At least two plaintiffs in the current lawsuit came forward and identified as transgender after then-Secretary Ashton Carter announced the open service policy. These transgender service members have a particularly strong reliance interest that makes them particularly sympathetic to any court. Hence, the Pentagon will have an exceedingly difficult task in reconciling transgender service members who were allowed to serve openly pursuant to the earlier Defense Department policy.

Finally, the full transgender ban is slated to take effect on March 23, 2018. After this date, Defense Department resources to fund sex reassignment surgical procedures will also be halted “except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.” The federal court denied the plaintiffs’ request to lift this prohibition on sex reassignment surgeries on jurisdictional grounds. And this part of the Presidential Memorandum—that is, the ban on surgical procedures—remains in place for now.

Of course, as the court ruling this week suggests, the timetable for implementing the Trump Administration’s transgender ban could change. As of this writing, three potential avenues exist that could slow down or potentially even permanently halt all of the major Presidential Memorandum provisions.

The first avenue is the active litigation already underway challenging the ban’s constitutionality. Of critical importance, the federal court applied a heightened, intermediate level of scrutiny to the White House’s exclusion of transgender service members, akin to the level of scrutiny applicable in traditional gender discrimination cases. And the court issuing the injunction rejected the reasons behind the transgender ban, explicitly noting that these purported reasons “do not appear to be supported by any facts.” But the court order was not a total victory for the plaintiffs, since it did not grant the transgender service members’ challenge to the Presidential Memorandum that prohibited spending military resources on sex reassignment surgeries.

Second, Congress could intervene with legislation protecting transgender service members. But any such legislation would be subject to a likely presidential veto that would have to be overridden.

Finally, the Presidential Memorandum keeps the door slightly open for Secretary Mattis to provide an alternative recommendation for continued transgender service. But the President must ultimately find this argument convincing. The Pentagon is looking at alternatives now, taking into account the relevant criteria of military readiness, lethality, and unit cohesion with “due regard for budgetary constraints and applicable law.”

As I have previously argued, service members—regardless of who they are—require consistency, stability, and faithful support from their leaders on personnel policies that affect their individual health and ability to serve. Although the transgender litigation is far from over, the decision demonstrates the critical role that the judiciary has in protecting the rights of politically powerless individuals. Make no mistake, as tumultuous as this past summer has been for transgender service members, turbulent times surely lie ahead. Keep a watchful eye on the courts, the Congress, and the military’s civilian leadership as the biggest battles about who can serve this great nation are yet to come.

Mark Nevitt

Mark Nevitt is the Sharswood Fellow at the University of Pennsylvania Law School and a member of Truman National Security Project’s Defense Council.

An earlier, abbreviated version of this essay, written prior to the district court’s preliminary injunction, appeared on the Truman National Security Project’s, The Doctrine Blog.