President Trump on Friday rescinded his order last year for an all-out ban on transgender troops in the military and instead approved a new restrictive policy that will allow some to serve.
Trump decided to follow the recommendations of Defense Secretary Jim Mattis and allow transgender people who have not transitioned to a different gender or been diagnosed with gender dysphoria to serve.
The president had tweeted last year that transgender troops would no longer be allowed to serve “in any capacity.” But Mattis sent a study with the recommended new policy to the White House on Feb. 23. The Pentagon declined to release it, but the documents were published as part of an ongoing federal lawsuit late Friday.
“The policies set forth by the secretary of defense state that transgender persons with a history or diagnosis of gender dysphoria — individuals who the policies state may require substantial medical treatment, including medications and surgery — are disqualified from military service except under certain limited circumstances,” Trump wrote in a memo to Mattis on Friday.
Trump canceled his August order rolling back the Obama administration’s policy of open service and granted Mattis and Homeland Security Secretary Kirstjen Nielsen, who oversees the Coast Guard, the “authority to implement any appropriate policies.”
Mattis’ proposed policy bars service by anyone with a gender dysphoria diagnosis, with some exceptions, and anyone who has undergone gender transition, which could eliminate many transgender candidates.
It caused immediate outcry from opponents of Trump’s pushback on open transgender service.
“This policy is a thinly-veiled and feeble attempt by the Trump-Pence administration to justify the unnecessary discrimination of qualified patriots in order to advance their own personal agendas and in defiance of the administration’s top military leadership,” said Matt Thorn, president and CEO of OutServe-SLDN. “This plan is riddled with blatant animus, bigotry, and ignorance but conveniently void of any foundational bases or facts.”
However, the new policy is likely to remain tied up in the courts for now. Transgender service members and prospective recruits are challenging a ban in four federal lawsuits and have so far won injunctions from district courts in Seattle, Washington, D.C, Maryland, and California.
The injunctions block the Pentagon from changing its transgender personnel policy while the cases are being heard.
A 2016 Rand Corp. study estimated there are 1,320 to 6,630 transgender troops in the military, but rights groups have argued the number could be higher. The Pentagon has claimed it does not know the number.
Trump tweeted out his plans for a ban on July 26, surprising many in the Pentagon and on Capitol Hill, and he followed up with a guidance to the Pentagon in August. It said the Obama-era open-service policy would be rolled back today and a ban would remain “until such time as a sufficient basis exists” proving transgender troops would not hinder warfighting, disrupt unit cohesion, or create a cost burden.
He also ordered in August that a ban on military funding of sex reassignment surgeries would go into effect today.
Mattis set up a Pentagon working group that spent six months looking into the issue.
In the meantime, early court victories by opponents of a ban forced the Pentagon to start accepting transgender recruits at the beginning of this year, despite Trump’s August order that also nixed the recruiting plans created under the Obama administration.
At least two transgender people have enlisted since January.
The four federal lawsuits challenging the ban are now moving to the discovery phase.
A district court in Seattle is now considering the plaintiff’s motion for a summary judgment, which could speed a decision on knocking down Trump’s ban and likely move the legal dispute closer to the Supreme Court.
This week, the Seattle court ordered the administration to turn over the records showing names and dates related to Trump’s meetings about the policy leading up to the tweet.
Plaintiffs in the four federal lawsuits, who are being backed by transgender rights groups, are pressing the Trump administration in court to turn over the White House logs, which they believe will disprove the president’s claim that he consulted military leaders.
“After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military,” Trump tweeted in July. “Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.”
But the Justice Department argued the logs are privileged information and it refused on Thursday while acknowledging the move could affect the judge’s ruling on the pending summary judgment motion.
