President Trump brought uncertainty to military transgender recruitment in 2017.
The year 2017 was a tumultuous one for transgender military service members. Following the introduction of Obama-era policies, many transgender service members started openly serving in the military and receiving transgender-related medical care.
But that all seemingly changed with a tweet from President Donald J. Trump in July 2017. The past year has introduced considerable uncertainty into military personnel policy and the status of transgender service members.
Since last July, the military has been on a veritable roller coaster with its transgender policy, as a retrospective chronology appended below reveals. Despite an August 2017 White House memo following up on the President’s tweet, rulings from four federal courts—in Baltimore, Seattle, D.C., and Riverside, CA—have all struck down President Trump’s proposed ban on transgender military service.
Recently, the U.S. Department of Defense (DoD) announced that it has started to accept transgender recruits. Although media attention to this issue has died down, considerable uncertainty still remains.
The U.S. Department of Justice has temporarily decided not to challenge the lower court rulings, but the Defense Department is still following through on its efforts to develop a plan that responds to the August White House memo calling for a policy change. The Department is specifically putting together an implementation plan with guidance from an independent study.
As we enter the second year of the Trump Administration, the results of this independent study and the experience in recruitment of new transgender service members will likely prove pivotal. There is every reason to believe that the transgender recruitment process will go smoothly. The study and resulting implementation plan will likely be thoughtful and measured—and will likely also drive any decision by the Justice Department to challenge (or not) the four lower court orders issued in 2017.
Of course, politics may still play a role in what is to come. As Commander in Chief, President Trump wields significant influence over the military. But with any luck, 2018 will see much calmer waters for currently serving as well as prospective transgender service members. The chaos of 2017 will hopefully be but a distant memory.
The Tumultuous 2017 Transgender Timeline
January 1, 2017: On the path to full and open service. At the beginning of 2017, transgender service members were on the path to being fully integrated into the Armed Forces. On June 30, 2016, then-Secretary of Defense Ash Carter issued a Directive-type Memorandum that allowed transgender service members to serve openly “without fear of retribution.” This Obama-era policy also opened gender transition medical assistance to currently serving transgender members while establishing a clear path for full and open service for all existing and prospective transgender service members. This included lifting a ban on transgender recruitment. The military services were authorized to begin “accepting transgender service members into the military in compliance with recruiting standards and policies in place” beginning July 1, 2017.
July 1st: Status quo. This date came and went without the Obama-era guidance being rescinded by President Trump. The military services had conducted transgender training by this deadline, several of them well ahead of schedule. Transgender service members were allowed to openly serve while receiving transgender medical support consistent with the Obama-era policy change.
July 26th: The day of the tweet. President Trump tweeted that “the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. military.” Questions immediately arose. Was this an immediate ban on transgender military service? Was this a direct order? How would the Defense Department implement a tweet (if at all)?
July 27th: The Pentagon responds. The Pentagon announced that it was not immediately planning on implementing the tweet, stating, “we don’t execute policy based on a tweet.” Openly serving transgender service members were left waiting for further guidance until late August. In the meantime . . .
August 9th: Lawsuits commence. Before official White House guidance was even promulgated, the first lawsuit was filed on behalf of transgender service members, challenging the constitutionality of President Trump’s proposed ban.
August 25th: Finally, official guidance (not a tweet). The White House issued a memo to the Secretaries of Defense and Homeland Security which established a timeline for what amounted to a full transgender service member ban to take effect on March 23, 2018 absent Defense Secretary Mattis providing “a recommendation to the contrary that” President Trump “finds convincing.” Relatedly, the Secretary of Defense was required to develop an implementation plan to “determine how to address transgender individuals currently serving in the . . . military.”
August 29th: Mattis announcement. Secretary Mattis released his own statement on transgender service members, announcing that “current policy with respect to currently serving members will remain in place.”
August 30th: Confusion reigns. Some national media outlets erroneously reported that Secretary Mattis was not following the White House memo. But upon closer review, Mattis’ statement was aligned with the earlier White House memo that stated that the transgender ban would not take effect until 2018.
September 15th: Congress steps in? Members in both Houses of Congress drafted legislation 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.
September 17th: Interim guidance. The Defense Department issued important interim guidance on transgender service while reaffirming that every “service member will be treated with dignity and respect.”
October 30th: The federal Judiciary steps in. In a ruling in the United States District Court for the District of Columbia by Judge Colleen Kollar-Kotelly, the court held that the transgender plaintiffs are likely to succeed on their Fifth Amendment claim that the transgender ban violates their due process rights and “disfavors a class of historically persecuted and politically powerless individuals.” Further, the court ruled that the proposed ban was not based on “legitimate concerns regarding military effectiveness” but, rather, was “driven by a desire to express disapproval of transgender people generally.”
November 21st: A second judicial opinion. In a ruling by Judge Marvin Garbis of the U.S. District Court for the District of Maryland, the court ruled that the Trump Administration cannot stop funding sex-reassignment surgeries for transgender military members.
November 27th: Clarification sought and received. In Washington, D.C., Judge Kollar-Kotelly issued an order clarifying her earlier order from October, stating that transgender accessions are authorized beginning January 1, 2018 consistent with the earlier Obama-era guidance.
December 8th: Military recruiters are ready. The Military Entrance Processing Command released formal guidance to military recruiters on accepting transgender enlistments. The military starts planning to comply with the lower court rulings and open the door to transgender recruitments in 2018.
December 11th: Third and fourth judicial opinions. A federal judge in Seattle granted a preliminary injunction against President Donald Trump’s ban on transgender individuals serving in the military, effectively blocking the ban from being implemented. Another court in Riverside, CA issued a similar ruling.
December 21st: Appeal denied. The U.S. Court of Appeals for the Fourth Circuit denied the Trump Administration’s request for a stay on enlisting transgender troops. The U.S. Court of Appeals for the District of Columbia Circuit followed up with a similar ruling the following day.
Jan. 1, 2018: An historic day. For the first time in U.S. history, openly transgender personnel are allowed to enlist and serve in the military.
This essay is part of a seven-part series, entitled Regulation in the Trump Administration’s First Year.