The Transgender Military Personnel Fight Continues Amid Uncertainty

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President’s memo favoring a ban of transgender service members raises new questions for future litigation.

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President Donald Trump announced late on Friday, March 23, that he favors disqualifying transgender persons with a history of gender dysphoria from the military except in “limited circumstances.” Hence, the legal fight for transgender military service will continue and considerable uncertainty remains.

To recap the developments leading up to last Friday’s presidential memo, recall that, under President Barack Obama and then-Secretary of Defense Ashton Carter, transgender service members were on the path to full integration into the military. The policy followed an easy logic: Anyone who meets the qualifications should be able to serve in the military. But following President Trump’s election, Secretary of Defense James Mattis exercised his discretion and approved the recommendation of the military services to delay the Obama-era accession policy for an additional six months.

While this six-month delay was already underway, President Trump tweeted—to the surprise of many in the military—that “the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. military.” The Pentagon first demurred on implementing the tweet, stating, “We don’t execute policy based on a tweet.” The White House soon followed up with a memo in August of last year, directed to the Secretaries of Defense and Homeland Security, that established a timeline for what amounted to a full transgender ban to take effect on March 23, 2018 absent Mattis providing “a recommendation to the contrary that” President Trump “finds convincing.”

Meanwhile, a flurry of lawsuits were filed in federal courts across the country. The first victory for military-transgender plaintiffs occurred in October when the U.S District Court for the District of Columbia held that transgender plaintiffs are likely to succeed on their Fifth Amendment claim that the transgender ban violated their due process rights because it “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.” Three federal courts in Maryland, Washington, and California also ruled in favor of military-transgender plaintiffs, holding—among other things—that the Trump Administration cannot stop funding sex-reassignment surgeries for currently serving transgender military members.

Late last year, the U.S. Court of Appeals for the Fourth Circuit denied the Trump Administration’s request for a stay on the acceptance of transgender troops into the military and the U.S. Court of Appeals for the District of Columbia Circuit followed up with a similar ruling the following day. Beginning on January 1 of this year, openly transgender personnel were allowed to enlist and openly serve in the military for the first time in American history.

Meanwhile, pursuant to direction from the August 2017 White House memo, Mattis established a new “panel of experts” comprising senior uniformed and civilian Defense Department officials to study the issue with fresh eyes. Mattis charged this panel to provide its “best military advice” on transgender military service. Their work continued apace over the past six months, independent of the lawsuits, culminating in a 45-page report last month. Soon thereafter, Mattis issued a three-page memo to the President that adopted the panel’s key findings.

The panel concluded that “there are substantial risks associated with allowing the accession and retention of individuals with a history or diagnosis of gender dysphoria.” The panel’s conclusions highlighted that exempting transgender persons from existing mental and physical health standards could undermine readiness, disrupt unit cohesion, “and impose an unreasonable burden on the military that is not conducive to military effectiveness and lethality.”

In adopting the panel’s recommendations, the Mattis memo adopted three specific policies:

  1. Transgender persons with a history or diagnosis of gender dysphoria are disqualified from military service, except under limited circumstances;
  2. Transgender persons who require or have undergone gender transition are disqualified from military service; and
  3. Transgender persons without a history or diagnosis of gender dysphoria (and who are otherwise qualified for service) may serve following rules established for individuals of their biological sex.

Finally, Mattis took issue with an earlier consultant report prepared by the RAND Corporation on transgender military service and did not mention the New England Journal of Medicine which described the cost of transition-related care as “negligible.” The Obama Administration’s transgender implementation guidance had been based in large part on the 112-page RAND study. But Mattis found that the RAND study contained what he characterized as significant shortcomings, included heavily caveated data to support its conclusions, and it “glossed over the impacts of healthcare costs, readiness, and unit cohesion.”

In a short memo issued late last Friday night, President Trump adopted Mattis and the expert panel’s findings. In doing so, he gave broad discretion and authority to the Secretary of Defense and the Secretary of Homeland Security “to implement any appropriate policies concerning military service by transgender individuals.” That implementation guidance is forthcoming.

So where do we go from here?

This latest change in transgender policy is slated to be made final via publication in the Federal Register and will be implemented shortly. This policy shift will undoubtedly spur new lawsuits and may breathe new life into existing lawsuits. The U.S. Department of Justice decided not to appeal the latest federal rulings pending the outcome of the panel’s study, but that may change. Although the waters remain murky for future transgender military service, there are four points to make about future litigation.

First, Mattis highlighted the importance of preexisting health standards, irrespective of transgender status. He noted that allowing the accession and retention of individuals with a history or diagnosis of gender dysphoria would require exempting them from “well-established mental health, physical health, and sex-based standards” that apply to all service members regardless of transgender status. The government will likely point to a single standard in asserting that the Trump transgender policy is not driven by any specific animus toward transgender individuals—a subject of particular concern to federal judges. For example, in an earlier ruling, U.S. District Court Judge Colleen Kollar-Kotelly was particularly concerned that any transgender ban violates due process rights because it discriminates against historically disadvantaged persons. Now the government will argue that it is simply applying a general health policy applicable to all personnel: no one is being singled out. But the issue of gender dysphoria was already addressed by the independent RAND study and the earlier Obama-era Defense Department Transgender Working Group that focused on implementing the policy. This Working Group comprised a team of medical and personnel experts that promulgated a 70-plus page implementation handbook via a comprehensive and inclusive process. What has changed? Further, by linking the new transgender policy to a per se disqualifying medical condition, this strongly discourages currently serving transgender personnel from seeking out the medical help that they may need.

Second, the panel of experts’ study and its implementation shines light on the practical difficulties in applying the military deference doctrine. In addition to deference afforded to expert agencies, the Defense Department is often afforded an additional layer of deference based upon the military’s unique mission and the importance of military expertise. There are now two Defense Department-funded studies that have arrived at different conclusions about transgender service members’ precise effects on unit cohesion and military effectiveness. How can the court weigh these studies? How should they? Should the recent panel’s study be given greater weight based upon the makeup of the panel by senior military and civilian defense officials? How should the RAND study be weighed, especially now that Mattis has flagged what he sees as limitations in it? Or is the RAND study more credible because of its perceived political independence? Significantly, RAND was not tasked to address whether the transgender ban should be lifted—instead, it was asked to answer seven questions addressing costs, readiness, and healthcare needs of transgender service members. RAND has stood firmly behind its findings, noting that its “research has been widely viewed as the most comprehensive and authoritative on this topic.”

Earlier federal rulings held that the transgender ban was not based on “legitimate concerns regarding military effectiveness” but “a desire to express disapproval of transgender people generally.” The recent panel study may weaken that argument. Nevertheless, courts will closely scrutinize the most recent study and the government’s arguments. After all, this policy change affects important constitutional rights of individuals.

Third, despite the panel of experts’ conclusion about military effectiveness, the bell cannot be “unrung” regarding the genesis of this massive policy shift initiated by the President that seemed to come out of the blue. Recall that the military’s reconsideration of its transgender policy occurred in the context of a tweet by the President, made with apparently little to no consultation with military experts. Prospective and current litigants will assert that, despite the Pentagon’s most recent study, the military policy shift is best explained as having been driven by animus against a politically disfavored class of individuals. Furthermore, they will assert that, if the very origin of the new transgender policy came about without meaningful military consultation, little deference should be afforded irrespective of a follow-on study that was tainted by the desired political ends. The irony is that Mattis had already put a six-month delay on transgender accessions into the military when President Trump tweeted his dramatic change in policy without, apparently, consulting his top military advisor. This failure may undermine the follow-on study and provide a strong basis for litigants to assert that this change in policy was fundamentally driven by animus.

Finally, if the new transgender policy survives judicial scrutiny, the all-volunteer force stands to lose an enormously talented group of people through administrative separations. What a shame. The expert panel focused on the costs and disruptive nature of transgender medical treatment on readiness, but what is the cost to readiness of completely losing this talent forever? Absent from the panel of experts’ study is a comprehensive discussion of the readiness impact of administratively separating transgender service members and its associated costs. During a time of immensely complex national security threats, we need to ensure that our most talented asset—the individuals constituting the U.S. Armed Forces—are prepared to meet those challenges. And we need to keep faith with them. Transgender service members have weathered the storm of policy debates over the past several years through the Trump and Obama Administrations and continue to serve honorably in the most sought-after and demanding specialties (cyber, medicine, and aviation, for example). Removing such dedicated individuals is an affront on the human dignity of each transgender service member who voluntarily and selflessly joined the military. As General Joseph Dunford has previously stated, “I believe any individual who meets the physical and mental standards, and is worldwide-deployable and is currently serving, should be afforded the opportunity to continue to serve.”

Although the President has now revoked his directive calling for a complete ban on service by transgender individuals, what he has replaced it with gives the Secretary of Defense considerable discretion to adopt an “appropriate” policy. It remains unclear exactly how and when the Defense Department will issue its new policy, even though it will in all likelihood follow the recommendations in Mattis’s recent memo. We must await the release of implementing Defense Department guidance to know exactly what the policy will say. For the foreseeable future, though, legal challenges and uncertainty will remain. The fight for full transgender integration into the military is far from over and may ultimately be decided in the U.S. Supreme Court.

Mark Nevitt

Mark Nevitt is the Sharswood Fellow at the University of Pennsylvania Law School.