March 26, 2018

New DOD policy bars troops with histories of gender dysphoria

Daily Briefing

    President Trump on Friday announced a new policy that would ban many transgender individuals from serving in the U.S. military.

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    The Department of Defense (DOD) conducted a review of the department's policy allowing transgender individuals to serve in the military after Trump last year announced via Twitter that he would seek to re-implement a ban on transgender troops because DOD should not be burdened with "the tremendous medical costs" associated with such individuals. Trump later signed a presidential memorandum—which also applied to the Department of Homeland Security (DHS), which houses the Coast Guard—that ordered DOD to examine the matter and develop an implementation plan.

    The policy change triggered several lawsuits and, according to Politico, four federal courts have issued preliminary injunctions blocking Trump's initial order. DOD reportedly has accepted at least one transgender recruit so far this year, Politico reports.

    Policy details

    DOD Secretary Jim Mattis in a Feb. 22 memo to Trump said DOD based on the review "concludes that there are substantial risks associated with allowing the accession and retention of individuals with a history or diagnosis or gender dysphoria and require, or have already undertaken, a course of treatment to change their gender."

    As such, Mattis recommended "transgender persons with a history or diagnosis of gender dysphoria are disqualified from military service," including those "who require or have undergone gender transition." Exceptions to the ban include people who have been "stable for 36 consecutive months in their biological sex prior to accession," servicemembers diagnosed with gender dysphoria after joining the military who "do not require a change of gender," and servicemembers who joined the military between policy changes made under former President Barack Obama's administration's and the effective date of the new policy. But the New York Times reports that DOD could require such individuals to serve according to their genders at birth.

    The memo, which gives DOD the ability to make exceptions as needed, stated that the DHS secretary "concurs with these policies with respect to the U.S. Coast Guard."

    White House press secretary Sarah Huckabee Sanders in a statement said Trump had rescinded his previous policy to allow the new policy to take its place, CNN reports.

    The White House in a statement said, "This new policy will enable the military to apply well-established mental and physical health standards—including those regarding the use of medical drugs—equally to all individuals who want to join and fight for the best military force the world has ever seen."

    Ongoing court battle

    However, the new policy does not resolve the ongoing court cases, Politico reports. Maj. Dave Eastborn, a DOD spokesperson, said the department "will continue to comply with the federal court ruling and continue to assess and retain transgender service members." According to Politico, the Department of Justice (DOJ) said it would continue "to defend DOD's lawful authority to create and implement personnel policies they have determined are necessary to best defend our nation."

    On Friday, DOJ asked a federal court in Maryland to lift its order against the previous ban, saying the new policy is "far from a categorical ban" and contains "nuanced" exceptions allowing some transgender individuals to serve.

    Advocacy groups, Democrats lambast new policy

    Civil-liberties groups, LGBTQ advocacy groups, and Democratic lawmakers criticized the new policy.

    Joshua Block, a senior staff lawyer at the American Civil Liberties Union's LGBT & HIV Project, said, "This policy is not based on an evaluation of new evidence. It is reverse-engineered for the sole purpose of carrying out President Trump's reckless and unconstitutional ban, undermining the ability of transgender service members to serve openly and military readiness as a whole."

    Matt Thorn, president of OutServe-SLDN, said, "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."

    House Minority Leader Nancy Pelosi (D-Calif.) called the ban "cowardly, disgusting." She said, "No one with the strength and bravery to serve in the U.S. military should be turned away because of who they are."

    Rep. Jimmy Panetta (D-Calif.), who serves on the House Armed Services Committee, said "the ban, which implements the same policy that was blocked by several courts, runs counter to the American values that our troops are fighting to protect."

    Leon Panetta, who served as DOD secretary under Obama's administration, said, "We ought to provide the opportunity to everyone to be able to serve this country in uniform," adding, "It doesn't make a hell of lot of sense to throw people out of the service who are doing a good job" (Talev, Bloomberg, 3/23; Klimas/Bender, Politico, 3/23; Tatum, CNN, 3/24; Cooper/Gibbons-Neff, New York Times, 3/24; Department of Defense memo, 2/22).

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