Trump’s Second Attempt to Ban Transgender Troops Lets Those Currently Serving Stay

President Donald Trump blindsided his own military leaders last year when he announced via Twitter that he would reverse course and reinstitute a full ban on transgender people serving in the military. Then he ordered the Department of Defense to perform an internal study to justify the decision.

That results of that study were sent to the president earlier this month. And on Friday, amid a whirlwind news cycle, the White House dropped a memo announcing that it’s moving forward with its plan based on the recommendations. Transgender people will no longer be able to serve in the military.

Well, sort of. Maybe. It’s all complicated.

First of all, the president’s attempt to suddenly halt and reverse the Obama-era Department of Defense’s transgender policy changes have been challenged in federal court. Court injunctions keep the military from booting out trans troops or keeping trans recruits from joining. So the military currently continues to accept enlistments from transgender folks.

The new orders from the White House are intended to replace the previous orders, and the Friday night memo officially “rescinds” them. As such, the Department of Justice is also asking the court to dissolve the previous injunctions as moot. There will most certainly be a new round of lawsuits attempting to block the new policy as well.

The new transgender ban has three main components:

• Transgender folks can continue to join and serve the military if they’re willing to continue representing themselves as their biological sex and do not have a history of being diagnosed with gender dysphoria, the psychological condition of feeling discomfort or distress with being born as the opposite sex that you feel you are. It’s essentially the return of “Don’t ask, don’t tell,” but for transgender troops instead of gay ones. You can think of yourself as being transgender all you want as long as you don’t actually do anything to change how you represent your sex.
• Transgender people who have or want to undergo any sort of transition are disqualified from the military, as are people who have been diagnosed with gender dysphoria. There’s an exemption for those who can demonstrate that they haven’t dealt with thoughts of gender dysphoria for three years prior to applying to join the military. This is similar to how the military approaches enlistments from people who have been diagnosed with depression or some other psychological condition.
• Transgender people who are already in the military are exempt from these first two guidelines and can continue to serve, even if they pursue gender transition. But under new policies that cover all troops, they may not be deemed “non-deployable” for more than 12 months and remain in the military.

The third guideline is obviously intended to try to cut off several lawsuits at the knees. Several of the transgender people suing to block the ban are those already serving in the military who have “come out” as transgender and begun their transition with the expressed understanding that the Department of Defense is allowing it. Suddenly changing the terms of their service creates due process and contractual issues, and those have undergirded some of the lawsuits.

Yet allowing these people to stay in the military has the side effect of subverting the arguments for banning transgender people in the first place. The report from Defense Secretary Jim Mattis leans on the typical sawhorses of “military readiness” and “unit cohesion,” often the same arguments that had been used to keep gay people from serving. If transgender troops present problems for the military that justify banning them, won’t the problems be present in the troops they’re allowing to remain?

The report also points to the increased medical costs for accommodating transgender troops, which could run under $10 million. That sounds like a lot until you look at the omnibus spending bill that just passed. It budgets $600 million for Air Force satellites that the Department of Defense didn’t even ask for.

In some ways, this weird, middle-of-the-road response may actually be for the best. The military will develop more experience in sorting out whatever privacy issues develop between transgender troops and the rest of the unit, and over time all sides will grow more comfortable with the idea. Fundamentally, the end of the ban on gay troops succeeded because it did not have the impact on readiness or morale that people feared.

Read the Mattis memo for yourself here.