Update: On January 22, 2019, the Supreme Court lifted blocks on the trans military ban that were secured by two lawsuits while federal courts continue to review. Our case, Stone v. Trump, continues to move forward at district court in Maryland.
After four separate courts blocked the Trump administration’s ban on transgender people serving in the military, the White House announced a new plan to carry out the ban on March 23. How is this possible? And what does this mean?
We sat down with three lawyers from our LGBT & HIV Project — Josh Block, Chase Strangio, and James Esseks — to break it down.
Last week, the Trump administration announced a new plan to implement the ban on trans people serving in the military. What does that policy actually do?
Josh: They are calling it a new policy, but it’s really just following through on what Trump ordered last year. He told the military last year to ban transgender people from serving. Last week the military did it.
Chase: Yes, it is just the military’s implementation of his order to ban trans people from serving. There is nothing new. The implementation of Trump’s plan, which was released last Friday, is a wholesale ban on trans people serving, just like Trump asked for when he first tweeted.
Can some trans people stay in the military?
Josh: Yes, they made an exception to the policy for people who are already in the military and diagnosed with gender dysphoria to get around the court orders in place. But that is a small exception. The actual policy is that if you are transgender, you can’t serve.
So trans people can’t enlist unless they serve as the gender they were assigned at birth?
Chase: Correct, and only if they have taken no steps to transition of any kind. So really: Trans people can’t enlist. Also, many trans people do have gender dysphoria and if they have access to a doctor, a diagnosis. But, for people currently serving, many were serving in the shadows before the previous ban was lifted in 2016 so do not have that documentation.
James: The implementation policy says that trans folks who don’t want to transition, who don’t suffer any dysphoria because of being trans, and who can serve in their assigned sex at birth can enlist or serve. But do those people even exist?
Chase: I don’t think those people exist. Or if they do, they aren’t trans.
What about trans people who are already enlisted/currently serving?
Chase: In theory, they can stay in the military if they are out now and have a diagnosis. But what we don’t know is what kind of punishment they will face for being trans: lack of promotions, denial of deployment, forced discharge for pretextual reasons.
So there’s a chance that if you’re currently in the military and you come out as trans, you could be discharged?
Josh: If this new policy goes into effect, anyone who comes out as trans for the first time will be affected.
Didn’t the court already strike this ban down multiple times? How can they do this?
Josh: They can’t. That’s why the government is asking the courts to dissolve their injunctions. The government is pretending that they have now gone through an independent analysis that is not infected by Trump’s transparent discriminatory intent. It’s very similar to the games the government has played with the Muslim ban. Pretending to pass a new policy and then claiming it isn’t tainted by Trump’s unconstitutional orders.
So the government is claiming it has new evidence that should be sufficient justification for the ban moving forward?
Josh: They were supposed to study the issue and claim to have found “new evidence” to support the ban. But that “new evidence” is mostly data from before transgender people were allowed to serve openly.
Chase: And it isn’t even really much evidence at that. It is a lot of uncited ideological polemics about how trans people are just inherently devious and threaten the privacy of others with no support for any of it, which is why they have been condemned, for example, by the APA:
“The American Psychological Association is alarmed by the administration’s misuse of psychological science to stigmatize transgender Americans and justify limiting their ability to serve in uniform and access medically necessary health care.”
Why do you all think the Trump administration is choosing the military as the vehicle for its anti-trans agenda?
Chase: Well they certainly aren’t limiting their attacks to the military. They have attacked us in the context of education, employment, health care and housing. It is an all-out assault.
Josh: Right. The simple answer is that the administration wants to encourage discrimination against trans people any time it has power to do so. But the military does have a special salience on our society. Excluding trans people from the military sends a powerful message that trans people are not part of the fabric of American civic life.
What can people do?
Chase: People can support trans people in their lives, and make clear publicly that they oppose this administration’s efforts to erase and target us. They can fight discrimination at the federal, state and local levels.
Anything else you think people should know?
Chase: It is important that we keep in mind this is part of an effort to confuse and exhaust us and it is part of the same strategy of this administration to roll back civil rights protections and target particular groups of people and communities. The injunctions are still in place so for now they are blocked from implementing any of this. We are fighting to keep it that way and will keep fighting.