While transgender rights advocates are denouncing the decision Tuesday by the U.S. Supreme Court to allow the Pentagon to temporarily implement a policy barring some transgender individuals from military service, the Pentagon says currently-serving transgender troops will not be kicked out.
“As always, we treat all transgender persons with respect and dignity,” said a statement issued shortly after the high court’s decision. “DoD’s proposed policy is NOT a ban on service by transgender persons.”
After President Trump tweeted in 2017 his intention to ban all service by transgender troops, reversing an Obama administration policy, then-Defense Secretary Jim Mattis fashioned a compromise policy that allowed current serving troops to remain, along with new recruits who were willing to serve in their biological birth gender.
The policy would ban most individuals “with a history or diagnosis of gender dysphoria,” who require substantial medical treatment, including medications and surgery.
The implementation of that 2018 policy has been delayed by four separate lawsuits by transgender rights groups who argue the policy is discriminatory and not based on sound medical science.
Tuesday’s Supreme Court ruling is not the final disposition of the issue, but lifts all the temporary injections that had been blocking the policy from being put into effect.
The Pentagon did not immediately say how soon the rules might become operative, but stressed that the overriding concern in maintaining the highest levels of combat effectiveness.
“It is critical that DoD be permitted to implement personnel policies that it determines are necessary to ensure the most lethal and combat effective fighting force in the world,” the statement said. “DoD’s proposed policy is based on professional military judgment and will ensure that the U.S. Armed Forces remain the most lethal and combat effective fighting force in the world.”
Advocates for transgender troops argue that there is no diminution of effectiveness by allowing troops who have changed their gender identify to serve in the armed forces.
“For more than 30 months, transgender troops have been serving our country openly with valor and distinction, but now the rug has been ripped out from under them, once again,” said Peter Renn, an attorney with the group Lambda Legal. “We will redouble our efforts to send this discriminatory ban to the trash heap of history where it belongs.”
“Multiple federal courts have recognized that excluding qualified individuals simply because they are transgender is contrary to basic constitutional principles of equality and fairness,” said Shannon Minter, legal director of National Center for Lesbian Rights, one of the groups representing transgender plaintiffs.
Other groups called on the Pentagon not to enforce the ban, until the legal arguments are exhausted, and even after that.
“It’s critical to understand that the military is not required, and has no need, to reinstate the transgender ban, which would cause destabilizing whipsaws in personnel policy,” said Aaron Belkin, director of the Palm Center.
“The Defense Department should not reinstate the transgender ban because it would undermine readiness, cause significant disruptions and uncertainty, deprive the military of much-needed talent, and wreak havoc with the lives and careers of the 14,700 transgender troops bravely protecting our nation’s security,” Belkin said.
Attorneys from GLBTQ Legal Advocates & Defenders and National Center for Lesbian Rights are among the groups representing plaintiffs in cases challenging the ban.
“The Trump administration’s cruel obsession with ridding our military of dedicated and capable service members because they happen to be transgender defies reason and cannot survive legal review,” said Jennifer Levi director of GLBTQ Legal Advocates & Defenders or “GLAD.”
“The Supreme Court’s decisions today are perplexing to say the least: on the one hand denying the Trump administration’s premature request for review of lower court rulings before appellate courts have ruled and rebuffing the administration’s attempt to skirt established rules; and yet on the other allowing the administration to begin to discriminate, at least for now, as the litigation plays out,” said Renn.
“We will redouble our efforts to send this discriminatory ban to the trash heap of history where it belongs.”
The decision drew an immediate rebuke from the new chairman of the House Armed Services Committee, now controlled by Democrats.
“I am extremely disappointed in the Supreme Court’s decision to allow the Trump administration to enforce its discriminatory ban on transgender military service without proper due process in the courts,” said Rep. Adam Smith, D-Wash. “Anyone who is qualified and willing should be allowed to serve their country openly, without their career being affected by an arbitrary, discriminatory directive from the President. We have fought against this bigoted policy at every step, and we will continue to do so.”
