Biden Order Reversed the Transgender Military Ban

To understand the significance of this executive order, you need to know the history behind it.

Photo by Sharon McCutcheon on Unsplash

President Biden issued an executive order on January 25, 2021, called “Executive Order on Enabling All Qualified Americans to Serve Their Country in Uniform”. The purpose of this executive order was to overturn former President Trump’s ban on transgender people serving openly in the military.

“All Americans who are qualified to serve in the Armed Forces of the United States (“Armed Forces”) should be able to serve. The All-Volunteer Force thrives when it is composed of diverse Americans who can meet the rigorous standards for military service, and an inclusive military strengthens our national security.”

To understand the significance of this executive order, you need to know a little history about how people who are transgender were being treated in the military.

On July 13, 2015, Defense Secretary Ash Carter announced that military had six months to figure out the logistics of integrating transgender troops into the military. Secretary Ash Carter stated that the ban on transgender individuals serving in the military was “causing uncertainty that distracts commanders from our core missions”. Going forward, the military and civilian officials who would be determining the new rules will work under the assumption that transgender people can serve without “adverse impact on military effectiveness and readiness, unless and except where objective, practical impediments are identified.”

Unfortunately, the ban transgender people serving in the military had to stay in place until the military completed their studies on how to appropriately integrate transgender troops.

It should be noted that this change was initiated a few weeks after the Supreme Court of the United States made marriage for same-sex couples legal nationwide.

The case was called Obergefell v. Hodges, and was brought to the court by Jim Obergefell, who sued because he was unable to put his name on his late husband’s death certificate. The argument was that the laws violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment. Supreme Court Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagen voted for same-sex marriage rights, making same-sex marriage legal across the United States of America in June of 2015.

On June 30, 2016, the Obama-Biden administration ended the military’s longstanding ban on openly transgender service members. The change would take a year to be fully implemented. At the time, NBC News reported: Unlike “don’t ask, don’t tell,” which required congressional approval both to become law and to be repealed, the transgender policy was never a statutory bar; that meant that ending it required only the direction of the defense secretary and the president.

President Biden’s executive order included the following:

“To that end, in 2016, a meticulous, comprehensive study requested by the Department of Defense found that enabling transgender individuals to serve openly in the United States military would have only a minimal impact on military readiness and healthcare costs. The study also concluded that open transgender service has had no significant impact on operational effectiveness or unit cohesion in foreign militaries.

“On the basis of this information, the Secretary of Defense concluded in 2016 that permitting transgender individuals to serve openly in the military was consistent with military readiness and with strength through diversity, such that transgender service members who could meet the required standards and procedures should be permitted to serve openly. The Secretary of Defense concluded that it was appropriate to create a process that would enable service members to take steps to transition gender while serving.”

There is a big problem with rules that do not require congressional approval to become a law (or to be repealed). It leaves open the possibility that the next president will choose to reverse the rule, and in doing so, cause harm to an entire group of people.

On August 25, 2017, (former) President Trump issued a Presidential Memorandum titled: “Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security”. The subject was: Military Service by Transgender Individuals.

Here is part of Trump’s presidential memorandum:

“…Until June 2016, the Department of Defense (DoD) and the Department of Homeland Security (DHS) (collectively, the Departments) generally prohibited openly transgender individuals from accession into the United States military and authorized the discharge of such individuals. Shortly before President Obama left office, however, his Administration dismantled the Departments’ established framework by permitting transgender individuals to serve openly in the military, authorizing the use of the Departments’ resources to fund sex-reassignment surgical procedures, and permitting accession of such individuals after July 1, 2017. The Secretary of Defense and the Secretary of Homeland Security have since extended the deadline to alter the currently effective accession policy to January 1, 2018, while the Departments continue to study the issue.

“In my judgement (President Trump stated) the previous Administration failed to identify a sufficient basis to conclude that terminating the Departments’ longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources, and there remain meaningful concerns that further study is needed to ensure that continued implementation of last year’s policy change would not have those negative effects…”

The Memorandum also states that (former) President Trump directed the Secretary of Defense and the Secretary of Homeland Security, with respect to the U.S. Coast Guard, “to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016 until such a time exists upon which to conclude that terminating the policy and practice would not have the negative effects discussed above.”

It is important to note the differences between (former) President Obama’s executive order and (former) President Trump’s memorandum. Obama’s overturning of the ban on transgender troops was not announced until the military completed their studies on how to appropriately integrate transgender troops. The studies took about six months to complete, and Obama did not announce the overturning of the ban until after learning the outcome of the studies. In short, Obama was careful. He had research done, and then he read the conclusions of the research. After making his announcement to overturn that ban — the changes took about a year to fully go into effect.

Trump’s memorandum is the reverse of Obama’s in every way. Trump did not wait for his military leaders to do a study on whether or not Obama’s reversal of the ban on transgender troops was helping or hindering the military. Instead, he based the entire memorandum on his own judgement. This was done on a whim, in an effort to hurt transgender people. It was just one example of Trump’s cruelty.

On April 26, 2017, Stars And Stripes reported that Secretary of Defense Jim Mattis told lawmakers that none of the four military services’ top generals nor the chairman of the Joint Chiefs of Staff were consulted before his predecessor permitted transgender people to serve in the armed forces two years ago.

Stars And Stripes also reported: During a heated exchange, Mattis defended his recent policy barring most transgender individuals from serving, telling Sen. Kirsten Gillibrand D.-N.Y., that the directive unveiled under Defense Secretary Ash Carter in 2016 was “opaque” and blocked the Pentagon from revealing issues it uncovered with their service.

Stars And Stripes continued: The secretary’s response was a rare public assessment of his new policy, released last month in a 48-page document. The new policy, which has been approved by President Donald Trump, has not been enacted, as four federal judges have blocked it, pending the outcome of four discrimination lawsuits filed by transgender individuals and advocates against the federal government.

The article also included a quote from Senator Kirsten Gillibrand. “It appears that this report your department has issued is not based on the department’s data or science, but rather on quote ‘potential risks’ that the authors cannot back up,” Gillibrand said. “In fact, this seems to me to be the same unfounded claims and unfounded concerns that led to the opposition to repealing ‘Dont Ask Don’t Tell,” integrating women into the military, integrating African Americans into the military, and I think you need to do a lot more work on this topic to inform yourselves.”

On August 30, 2017, Trump’s Secretary of Defense, Jim Mattis, froze the policy and allowed transgender troops to continue serving. Jim Mattis said in a statement: “Once the panel reports its recommendations and following my consultation with the secretary of Homeland Security, I will provide my advice to the president concerning implementation of his policy direction. In the interim, current policy with respect to currently serving members will remain in place.”

At the time, USA TODAY reported: Last year, the Pentagon commissioned a study by the non-partisan RAND Corp. to examine the effect on military readiness of allowing transgender troops to serve openly and the cost of providing them medical treatment. The study estimated that a few to several thousand transgender troops are on the active duty force of 1.3 million. Researchers found that paying for their health care needs would amount to about $8 million per year and their effect on readiness would be negligible.

The decision by Secretary Mattis caused a change to Trump’s original ban on transgender troops. On March 23, 2018, Trump posted a Presidential Memoranda titled: “Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security Regarding Military Service by Transgender Individuals”. From the memoranda:

“Pursuant to my memorandum of August 25, 2017, “Military Service by Transgender Individuals,” the Secretary of Defense, in consultation with the Secretary of Homeland Security, submitted to me a memorandum and report concerning military service by transgender individuals.

“These documents set forth the policies on this issue that the Secretary of Defense, in the exercise of his independent judgement, has concluded should be adopted by the Department of Defense. The Secretary of Homeland Security concurs with these policies with respect to the U.S. Coast Guard.

“Among other things, the policy set forth by the Secretary of Defense state that transgender persons with a history of diagnosis of gender dysphoria — individuals who the policies state may require substantial medical treatment, including medications and surgery — are disqualified from military service except under limited circumstances.”

The memoranda also stated that the August 25, 2017 memoranda was revoked, along with any other directive Trump “may have made with respect to military service by transgender individuals”. It also stated that the Secretary of Defense, and the Secretary of Homeland Security, with respect to the U.S. Coast Guard, “may exercise their authority to implement any appropriate policies concerning military service by transgender individuals.”

On December 21, 2018, Defense Secretary Jim Mattis resigned. CNN reported his resignation came a day after Trump’s plans to withdraw troops from Syria became public. The article included an embed of the resignation letter written by James Mattis. Here is a key portion of it:

“…Because you have a right to have a Secretary of Defense whose views are better aligned with yours on these and other subjects, I believe it is right for me to step down from my position. The end date for my tenure is February 28, 2019, a date that should allow sufficient time for a successor to be nominated and confirmed as well as to make sure the Department’s interests are properly articulated and protected at upcoming events to include Congressional posture hearings and the NATO Defense Ministerial meeting in February. Further, that a full transition to a new Secretary of Defense occurs well in advance of the transition of Chairman of the Joint Chiefs of Staff in September in order to ensure stability Within the Department…”

On March 14, 2019, NBC News reported: There are currently four lawsuits pending against the new policy. The Supreme Court stayed two injunctions in January, and last week, U.S. District Judge George Russell in Maryland lifted a third injunction. An injunction issued by a district court in D.C. still technically remains in effect, however, until the issuance of mandate. As a result, the release of the memo came as a shock to some advocates who question whether, with its publication, the government is in violation of a court order.

NBC News also reported: “Not only does the Trump-Pence transgender military ban violate the Constitution, but now the administration is also defying a court order,” Jennifer Levi, director of the Transgender Rights Project at LGBTQ legal group GLAD [sic], said in a statement. “With brazen disregard for the judicial process, the Pentagon is prematurely and illegally rolling out a plan to implement the ban when a court injunction remains in place prohibiting them from doing so.”

On April 12, 2019, (former) President Trump reversed the Obama-Biden rules that allowed people who are transgender to openly serve in the United States military.

NBC News reported: Under the new policy, which the Department of Defense has insisted is not a “ban”, currently serving transgender individuals who already received a diagnosis of gender dysphoria may continue to serve in their preferred gender, receive hormone treatments and undergo gender-affirming surgery. But after Friday, anyone with gender dysphoria who is taking hormones or has already undergone a gender transition will not be allowed to enlist. Further, any currently serving troops diagnosed with gender dysphoria after this date will have to serve in their sex as assigned at birth and will be barred from taking hormones or getting gender-affirming surgery.

President Biden’s executive order included information about what the Trump administration had done:

“…The previous administration chose to alter that policy to bar transgender persons, in almost all circumstances, from joining the Armed Forces and from being able to take steps to transition gender while serving. Rather than relying on the comprehensive study by a nonpartisan federally funded research center, the previous administration relied on a review that resulted in a policy that set unnecessary barriers to military service.

“It is my judgement that the Secretary of Defense’s 2016 conclusions remain valid, as further demonstrated by the fact that in 2018, the then-serving Chief of Staff of the Army, Chief of Naval Operations, Commandant of the Marine Corps, and Chief of Staff of the Air Force all testified publicly to the Congress that they were not aware of any issues of unit cohesion, disciplinary problems, or issues of morale resulting from open transgender service.

“A group of former United States Surgeons General, who collectively served under Democratic and Republican Presidents, echoed this point, stating in 2018 that “transgender troops are as medically fit as their non-transgender peers and that there is no medically valid reason — including a diagnosis of gender dysphoria — to exclude them from military service or to limit their access to medically necessary care.”

Therefore, it shall be the policy of the United States to ensure that all transgender individuals who wish to serve in the United States military and can meet the appropriate standards shall be able to do so openly and free from discrimination.

This is definitely a positive outcome. However, there is more to be done. Americans need Congress to make this executive order into a law. There is every reason to believe that this can be done while the Democratic Party has the Presidency, the majority in the House of Representatives, and the majority in the Senate. After it becomes a law, it will be much more difficult for future presidents — or Congresses — to overturn it.

Originally published at https://bookofjen.net on April 5, 2021.

Freelance writer with invisible illnesses and chronic pain. Poet, podcaster, video game player, creator of strange artwork, they/them @OwnkaMav

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