Transgender service members will be removed from the military unless they are granted a waiver, according to a memo the Pentagon filed in court late Wednesday.
The memo was released as part of a lawsuit filed by LGBTQ rights groups last month against President Donald Trump’s executive order barring trans people from enlisting and serving in the military and provides clarity on how the policy will be implemented.
Under the trans military ban Trump issued during his first term, trans service members who had come out prior to the ban taking effect could continue to serve openly and receive transition-related medical care. Those who had come out after it took effect had to serve in a manner consistent with their birth sex and could not receive transition care.
The new policy goes further, according to the memo filed in court Wednesday. Within 30 days, the Pentagon must identify service members who have “a current diagnosis or history of, or exhibit symptoms consistent with, gender dysphoria,” which is the medical term for the severe emotional distress caused by the misalignment between one’s gender identity and birth sex.
Those identified by the Pentagon will be disqualified from service and must be removed from their jobs. They will receive an honorable separation unless their record reflects otherwise, according to the memo.
Some trans service members can be considered for a waiver on a case-by-case basis, the memo states, “provided there is a compelling Government interest in accessing the applicant that directly supports warfighting capabilities.” They also must show 36 consecutive months of stability in their sex assigned at birth without clinical distress or impairment of functioning, that they have never pursued medical transition, and that they are willing to adhere to the standards for their sex.
The memo also states that the Defense Department will only recognize two sexes and that service members must use sex-separated spaces for sleeping, changing and bathrooms in accordance with their sex assigned at birth. The new policy also requires service members to use pronouns and salutations, such as sir and ma’am, that align with their birth sex.
The Defense Department will also be prohibited from using funds for transition-related care, including hormone therapy and surgeries, with all scheduled surgeries being canceled, the memo states. Service members can continue to receive hormone replacement therapy until they are separated from the military if a doctor recommends it.
Last month, the National Center for Lesbian Rights and GLBTQ Legal Advocates & Defenders (GLAD Law) filed a lawsuit on behalf of six active-duty trans service members and two trans people seeking to enlist, arguing that Trump’s executive order barring their service violates the 14th Amendment’s equal protection clause by discriminating against them based on sex and shows animosity toward transgender people because of their transgender status.
Kate Cole, an Army sergeant and trans woman who is a plaintiff in the suit, said in a statement Wednesday night that the new policy will destabilize the military.
“I’ve spent more than half my life in the Army, including combat in Afghanistan,” Cole said. “Removing qualified transgender soldiers like me means an exodus of experienced personnel who fill key positions and can’t be easily replaced, putting the burden on our fellow soldiers left behind.”
Shannon Minter, legal director at NCLR, said the memo filed Wednesday shows that the “scope and severity of the ban are unprecedented.”
“The administration has doubled down on betraying service members who have faithfully followed the rules, met the same standards as others, and put their lives on the line to serve our country,” Minter said in a statement. “This is a complete purge of all transgender individuals from military service.”
Trump’s executive order says being trans fundamentally “conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life.”
“A man’s assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member,” the order states.
Whether the order expresses animus against trans people sparked a tense back-and-forth between Justice Department attorney Jason C. Lynch and U.S. District Judge Ana C. Reyes during a preliminary hearing in the lawsuit last week.
“Would it be fair to say that excluding a group of people from military service based on unsupported assertions that they are liars, immodest, lack integrity, are undisciplined and are dishonorable, would you agree with me that — particularly where there’s no support for any of those assertions — that that is animated by animus?” Reyes asked Lynch, who declined to answer.
The Defense Department doesn’t publicly report how many trans people are serving in the military, and estimates vary widely. One 2014 report by the Williams Institute at UCLA using data from the 2011 National Transgender Discrimination Survey found that about 15,500 transgender people were serving in the military. A 2016 report from the Rand Corp. drawing from Defense Department data and previous research (including the Williams Institute report) found that there were a maximum of 10,790 trans people serving in the military and the reserves, though it found that figure could also be as low as 2,150.
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