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Fighting to Serve: Transgender Military Service and the Trump Administration

On June 30, 2016, Lieutenant Colonel Bryan Bree Fram, who goes by “B,” was sitting in their office in the Pentagon watching then-Secretary of Defense Ash Carter deliver a speech just downstairs on television. Carter was announcing an end to the ban on transgender people serving in the U.S. military. For B, an active duty astronautical engineer who identifies as nonbinary, that day would be the last of 13 years of service in the closet.

“I had a Facebook post and an email to all my colleagues ready to go for when [Carter] finished speaking. I hesitated. ‘Do I do this? Do I do this?’ I asked myself. And of course, I did.”

After so many years serving with the knowledge that they could lose their career at a moment’s notice if anyone discovered their gender identity, B remained very anxious. As soon as they came out online, B went down to the Pentagon gym to work off the nervous energy.

“I probably burned the motor out on the elliptical machine,” they said.

When B returned to their desk, they were thrilled to find immense support from family, friends, and colleagues both online and in person. Before the ban was lifted, B had already been involved in SPART*A, an advocacy and support group for transgender service members and veterans. Instead of facing what a week ago would have been near-certain discharge, one week after the rule change, B received a promotion within the military and now also serves as SPART*A’s communications director.

But one year later, in July 2017, President Trump undermined the new security B felt in their job with a succession of three tweets. The president wrote that the U.S. “will not accept or allow Transgender individuals to serve in any capacity in the U.S. military,” citing the “tremendous medical costs and disruption” associated with transgender service.

“They’re basically saying we’re simply ineligible to serve because of who we are,” said B, referring to the Trump administration.

In response to inquiries from The Politic about the ban, the Department of Justice sent a copy of an earlier statement from January 2019: “The Department of Defense has the authority to create and implement personnel policies it has determined are necessary to best defend our nation.” The statement said that the Obama-era policy—commonly termed the “Carter policy” after the then-Secretary of Defense—“poses a risk to military effectiveness and lethality.”

Trump’s tweets and two ensuing policy memorandums outlining a proposed ban—one from the president, one from the Department of Defense—have fueled a nationwide legal battle that still rages on today. At the heart of the debate are four lawsuits against the Trump administration’s policy, which LGBTQ+ advocates argue is discriminatory and unconstitutional. Despite the ongoing litigation, the Trump administration’s policy went into effect on April 12, 2019.

Service in the American military has long marked the position of marginalized groups in American society. Since the Civil War, wave after wave of people previously denied the right to serve—including African Americans, women, and immigrants—have demanded access to the institution. Indeed, the fight over transgender service in the U.S. military calls into question not only the very definition of “transgender,” but also the future of LGBTQ+ rights in the U.S.

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Trump’s tweets left an estimated 10,790 transgender service members unsure of what to do next. Attorneys and activists in LGBTQ+ organizations were equally at a loss.

Our first response was: ‘Is this policy? Does a tweet count as a policy?’” said Carl Charles, a staff attorney at Lambda Legal, a national legal organization dedicated to advocating for LGBTQ+ rights. Because of the ambiguous role of social media in the Trump era, the organization ultimately concluded that they should treat Trump’s tweets, much like those announcing his “Muslim ban” in 2017, as potential policy—and that the new ban needed to be challenged.

In early August 2017, the National Center for Lesbian Rights (NCLR) and GLBTQ Advocates and Defenders (GLAD) filed the first of four lawsuits against the Trump administration. The suit, called Doe v. Trump, challenged the constitutionality of the policy expressed in Trump’s tweets and the short memorandum that followed, which called on the Department of Defense to conduct a study on transgender military service.

Later that month, the American Civil Liberties Union filed the second case, Stone v. Trump, on the same day that Lambda Legal and OutServe-SLDN filed the third, Karnoski v. Trump, which Charles is still working on today. By October, NCLR, GLAD, and Equality California had filed the fourth case: Stockman v. Trump.

In federal district courts across the country, all four cases resulted in preliminary injunctions to halt the policy from taking effect while the cases were being heard in court.

In March 2018, the president accepted a new 44-page plan issued by Secretary of Defense James Mattis regarding transgender service in the military. According to the Trump administration, the new proposal revoked the transgender ban as stated in his first memorandum that followed his tweets. According to advocates, little has changed.

“The government began to argue that this new policy was different from the one declared under Trump’s tweets,” said Charles. According to him,  the Trump administration used this claim as grounds to challenge the preliminary injunctions that were issued.

The Mattis plan provides a grandfather clause for current transgender service members who relied on the Carter policy from June 2016 to transition medically or socially and thus secures their treatments for diagnosed gender dysphoria and allowing them to remain in the military.

Under the Mattis plan, however, any transgender service member will be disqualified from military service if they begin to undergo a transition. Moreover, no transgender person who has begun transitioning will be allowed to join the military. The policy states, “Service members diagnosed with gender dysphoria may be retained [only] if they do not require a change of gender.” For Charles and other advocates, this provision amounts to an effective “blanket ban” of transgender service members.

“The nature of being trans is that you can’t live and work in your sex assigned at birth. That is the fundamental definition,” he said. Thus, the Mattis plan is no different from the original plan Trump proposed, said Charles: “It’s the same exclusion.”

Jennifer Levi, one of the lead attorneys in Doe and Stockman, echoed Charles, calling the administration’s position “Orwellian.”

The administration, she explained, claims that “it is not a blanket ban on transgender service because it doesn’t preclude people who have a gender identity that is different from their birth sex.” The problem, said Levi, is that the policy “does prevent people from serving who live [in a way that is] consistent with that identity.”  

Levi equated the government’s argument to a similar one made in favor of the “Don’t Ask, Don’t Tell” policy. In that case, “the military said it would allow gay people to serve as long as they didn’t act in accordance with that identity,” she said.

In January of this year, in a five-four ruling, the Supreme Court lifted two of the four preliminary injunctions. In March, a Maryland federal judge lifted the injunction in Stone, and later that month, a Washington D.C. federal appeals court did the same for Doe.

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In spite of all the legal acrobatics, the courts will one day have to decide on the merits of the ban as a policy, not just on the merits of the preliminary injunctions. At that point, legal arguments against the ban itself will become crucial for its opponents.

Aaron Belkin is a political science professor at San Francisco State University and the founder of the Palm Center, a think tank that focuses on public policy issues relating to sexual minorities in the military. Belkin argues that the ban inhibits military efficacy.

“The preponderance of evidence shows that inclusive policy for [transgender] people promotes military readiness,” he said. The ban would exclude thousands of potential service members from contributing to military operations.

According to the conclusions of a 71-page RAND Corporation study commissioned by the Department of Defense under the Obama administration, transgender service in the U.S. military would place an “exceedingly small” burden on the army’s healthcare spending and have a “minimal impact” on readiness, in contrast to Belkin’s claim.

The amicus brief submitted by Yale Law School’s Rule of Law Clinic for the Doe case draws a contrast between the Obama-era policy and Trump’s current proposal: the Obama administration commissioned the RAND study before announcing its policy change on transgender service; the Trump administration, however, sought to eliminate the Obama policy in a series of tweets without providing supporting data from any federally commissioned study and without consulting the military in advance.

“President Trump announced his policy and only then commissioned a study. It’s the cart before the horse,” explained Charles.

Transgender advocates are also challenging the constitutionality of the Mattis plan under the Fifth and Fourteenth Amendments, invoking both the Due Process Clause and the Equal Protection Clause.

“Because the government had allowed trans people to serve under the Obama administration, it’s a violation of due process to just take that away from them,” said Ryan Thoreson, a clinical lecturer at Yale Law School and a researcher at Human Rights Watch on LGBTQ+ issues.

Regarding the Equal Protection Clause, “the concern is that this is discrimination on the basis of gender,” explained Thoreson. According to him, advocates for transgender military personnel actually have  “stronger footing” than did those opposing “Don’t Ask, Don’t Tell” in the 2010s. In the case of “Don’t Ask, Don’t Tell,” an argument needed to be made for non-discrimination on the basis of sexual orientation, which Thoreson said has even less legal protection than gender identity under the Constitution.

The Trump administration has cited high medical costs as a reason for the ban. But data from the Defense Department submitted to the House Armed Services Committee showed that the military has spent around $8 million on healthcare for transgender soldiers since 2016 out of a $50 billion healthcare budget. The figure amounts to about 0.016 percent of total spending on medical costs.

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According to Cynthia Enloe, feminist writer, theorist, and professor at Clarke University, widely known for her work on gender in the military, the current legal dispute about transgender military service is a modern iteration of a debate that has existed in the United States since the mid-19th century, when African-American men wanted to serve in the Civil War.

The transgender rights suits that are coming up in courts really are the next phase in the ongoing question of who should serve in the U.S. military,” said Enloe.

Belkin argued that the United States has always possessed a deeply rooted mythology that “male whiteness in the military was necessary for preserving American national security and the safety of American homes.” For this reason, Belkin said, American soldiering has always been tied to “cisgender, straight, white, male normativity, and privilege.”

“Each community has stepped up to the plate and said, we don’t want to be excluded from this imagination,” explained Belkin, referring to the movements by African Americans, women, immigrants, gays and lesbians, and now transgender people demanding a place in the military.  

Enloe detailed the degree to which women and black Americans in particular were systematically excluded from military service. In World War I, American black men were attached to French military units because the then-all-white U.S. Department of War (which no longer exists) thought the French, with their history of colonial expansion in Africa, would know how to “handle” black soldiers.

Referring to the World War I era, she said, “African-American men were not trained with guns. They had to train with broomsticks in Central Park,” because white segregationist senators feared African-American men using live weapons.

Until the mid-1970s, said Enloe, there was a ban within each branch of the military on having women make up more than two percent of its members.

“The two percent rule is the reason why, if you go to the Vietnam War Memorial, one of things you notice is how few women are on the wall. That’s not because women don’t fight wars—that’s because Congress had imposed a two percent limit,” said Enloe.  

Harold Hongju Koh, Sterling Professor of International Law at Yale Law School, former Dean of Yale Law School, and former Legal Adviser of the U.S. Department of State, said that historically speaking, the U.S. is unique among developed countries—particularly compared to those in Europe—in its slowness to accept transgender people into the armed forces. Koh helped found the Rule of Law Clinic at Yale Law School, the same clinic that submitted supporting evidence in Doe v. Trump.

Koh recounted a meeting he had in 2010 while working at the State Department with legal advisers from around the world, when the Obama administration was beginning to consider ending the “Don’t Ask, Don’t Tell” policy.

“There was a moment when a U.S. military official asked a German legal adviser, ‘Aren’t you worried about unit cohesion?’” said Koh. “The German legal adviser laughed and said, ‘American soldiers have been serving with gay Germans in NATO units since 1969, and there have been no problems.’”

Indeed, other countries around the globe have moved far faster than the United States in allowing LGBTQ+ people to serve in the military. “Trans rights have been adjudicated by the European Court of Human Rights in Strasbourg for decades,” said Koh.

The Netherlands was the first country to allow transgender service in 1974. Today, 18 countries have granted transgender people the right to serve.

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Whether the Supreme Court will ultimately rule in favor of transgender service members is unclear, and some activists think that congressional legislation—as opposed to court rulings—should be the primary avenue for protecting transgender service members.

“That was how ‘Don’t Ask, Don’t Tell’ was reversed, too. It was Congress that ultimately stepped in and got the ball rolling,” said Thoreson.

Earlier this year, Senator Kirsten Gillibrand (D-NY) introduced legislation that would allow transgender service. Senators Jack Reed (D-RI) and Susan Collins (R-ME) also sponsored the bill. Meanwhile, Representatives Jackie Speier (D-CA), Joseph Kennedy III (D-MA), John Katko (R-NY), Susan David (D-CA), and Anthony Brown (D-MD) introduced legislation in the House. Scholars like Thoreson remain skeptical that the legislation will ever come to a vote in the current Senate.

No matter how the transgender ban is stopped, immediate action is necessary, warned Koh.

“[The policy] can certainly embolden state and local authorities who will say: why should someone be allowed to serve in the local police force if they’re not allowed to serve in the military? There’s a copycat effect. If it’s good enough for the U.S. military, it’s good enough for us, they’ll say,” he explained.

But Mara Keisling, founder and executive director of the National Center for Transgender Equality, still has hope. “We’re going to keep fighting. We’re going to keep shining a light on trans service members who can certainly speak for themselves,” she said.

And speak for themselves they do. B remains an active Air Force officer committed to the same ideals they were committed to when they joined the armed forces.

“The oath that I swear is to the U.S. Constitution,” they said. “I truly care about the ideals that are embedded in that document…. We were founded to always strive to achieve great things and for a more perfect union. I am going to try to do that every day.”