Constitution Daily

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Transgender people allowed to join military

December 30, 2017 by Lyle Denniston


Forgoing, for now, a request to the Supreme Court to bar transgender individuals from enlisting in the military, the Trump Administration announced on Friday night that it would open the ranks to them beginning on Monday.

In the meantime, the Justice Department said, it will continue in federal trial courts to “defend the President’s and Secretary of Defense’s lawful authority” to control the policy on transgender service members.

Two federal judges have temporarily blocked President Trump’s ban on transgender military personnel – those serving as well as those seeking to join.  When the Administration sought permission from two federal appeals courts to put on hold the part of the ban against new enlistments, both of those tribunals refused to do so.   The next step would have been the Supreme Court, but that step has now been abandoned, for the time being.

Administration lawyers also moved to voluntarily dismiss formal appeals that they had filed in the two appeals courts – for the District of Columbia Circuit and for the Fourth Circuit.   As a result, the challenges to the ban by transgender service members or those seeking to join will continue in two trial courts, moving forward to final rulings.  The temporary orders against enforcing all parts of the ban will remain in effect.  Those orders were not as final ruling on whether the ban was illegal or unconstitutional, but they did represent conclusions by the two judges that the challengers were likely to win when the cases reached a final ruling.

The Defense Department is currently conducting a study of the entire issue, and plans to make a report to the President by February 21.   When government lawyers asked the courts to put off the start of new enlistments, they argued that the President’s ban might be changed as a result of the study.  That argument was rejected by one of the appeals courts, saying that the President had ordered the ban, and thus Defense Secretary James Mattis had no independent authority to alter the ban.

While refusing to enforce the ban on new enlistments, the courts have said that the Pentagon can enforce some restrictions on transgender recruits.   Transgender status is a medical condition – technically, “gender dysphoria” – in which the individual is identified at birth as male or female, but over time transitions to the opposite gender.

New transgender recruits will have to have proof from a doctor that their condition has been stable without complications over the past 18 months, proof that any gender transition medical treatment such as hormone injection has been stable for the same period of time, and proof that any gender reconstruction surgery was completed 18 months ago and no new surgery is required.   The Pentagon insisted on those limitations in order to assure that transgender individuals were, in its view, fully functional as service members.

The total ban on transgender individuals serving or joining was announced on Twitter by President Trump last July, to completely undo a policy of the Obama Administration that would allow those individuals to continue in the ranks or to join.   Secretary Mattis had put off the enlistment date – set for this past July 1 – to January 1.   The courts allowed that delay on new recruits, but denied any further postponement.

Although the Justice Department announcement that it would not pursue its appeals to the two Circuit Courts, it made no commitment about what it might do in the courts once the new Pentagon report has been submitted to the White House.   Presumably, it would have the option of seeking permission from the courts to implement any new restrictions that do emerge from the Pentagon or from the President.

The Pentagon has previously made plans to accommodate new transgender recruits when it must do so on Monday and after that.


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