President Donald Trump’s ban on transgender people serving in the military is back.
Previously, lower courts had placed injunctions on the ban. But on Tuesday, the Supreme Court put some of those injunctions on hold. Since one injunction remains in place for now, the ban can’t take effect just yet — but given the Supreme Court’s decision on Tuesday, that lower court’s injunction is likely to be put on hold soon as well.
If that happens, the Trump administration will be able to enforce its ban on transgender people serving openly in the military.
The Supreme Court did not decide yet whether it will directly oversee a case on the trans ban. It merely lifted some lower courts’ injunctions.
This goes back to July 2017, when Trump first tweeted he would ban trans military service. He argued, “Our military must be focused on decisive and overwhelming … victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.”
In August 2017, the White House put out the actual policy behind those tweets. According to the administration, Trump would effectively return to the pre-2016 era in which trans troops could not serve openly. It would also ban the military from paying for gender-affirming surgeries, with some exceptions to “protect the health” of someone who had already begun transitioning. The guidance also allowed the secretary of defense, after consulting with the secretary of homeland security, some wiggle room to decide what to do with already serving trans service members — and it let them advise the president on reversing the ban.
The policy was to take effect in March 2018, reversing the Obama administration’s decision to undo the military’s long-standing ban on openly serving trans troops.
But federal courts halted the ban from going through, finding in part that trans service members who challenged the policy were likely to prevail. As a result, openly serving trans service members were able to join the military starting on January 1, 2018, and the military has already paid for some for trans-inclusive medical services, including gender-affirming surgeries.
Then, in March 2018, the Trump administration unveiled version 2.0 of the ban. Following a Pentagon review, the White House rescinded the previous ban and approved a new memo that declares that “transgender persons with a history or diagnosis of gender dysphoria — individuals who the policies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 certain limited circumstances.” The prohibition includes people who have already transitioned.
The move is expected to ban most trans people from openly serving in the military, with exceptions for people who already began serving as trans prior to the memo and trans people who have been “stable for 36 consecutive months in their biological sex prior to accession.” But lower courts put the ban on hold — at least until the Supreme Court got involved.
Trump’s ban could lead to some very ugly consequences: trans service members staying in the closet, even when it’s dangerous for their service and their personal health and safety; trans troops being discharged or abused; and trans Americans more broadly receiving yet another signal that society still doesn’t accept or tolerate them.
The rationale for the ban is also baseless. The empirical evidence, based on the experiences of countries from Israel to the UK to Canada, shows that letting trans people openly serve poses minimal to no costs to the military’s budget or readiness.
But that evidence may not matter much to Trump, because the real reasons for the renewed anti-trans ban are reportedly more political — about sticking it to Democrats and political correctness — than his public-facing reasons. To Trump, trans troops have just become political pawns for his broader efforts.
Trump is reimposing an old anti-trans military policy
The original trans military service ban was a bit different from the “don’t ask, don’t tell” policy that the military used to stop gay and bisexual people from serving openly. “Don’t ask, don’t tell,” instituted in 1994, was an explicit policy that told gay and bisexual soldiers to stay quiet about their sexual orientation or risk discharge. The past trans ban was a medical regulation that let commanders discharge trans troops almost at will.
As a 2014 report from the Palm Center explained, the ban, as with other forms of discrimination against trans people, was based on incorrect and outdated medical rationale. The concern was that a person’s gender dysphoria — a state of emotional distress caused by how someone’s body or the gender they were assigned at birth conflicts with their gender identity — may interfere with someone’s ability to serve, since it can lead to severe depression and anxiety. And treating those conditions, the argument went, would cost too much money and disrupt the military’s operations.
There were still trans people in the military, just as there were gay and bisexual people in the military during “don’t ask, don’t tell.” But the ban forced trans people into hiding — at times leading to absolutely miserable conditions.
Shane Ortega, a retired trans soldier who served in Iraq and Afghanistan while in the Marines and Army, compared it to having to be a spy in a foreign land. “Think about being an American spy in Russia and how difficult that would be,” he told me in 2016. “You have to be perfect in every sense of the word. You have to always question people around you. You can never relax. You have to always think ahead. And you have to always be observant and aware of yourself and your surroundings.”
This is especially tough in the military, which relies on trust and working together as a family so soldiers are comfortable literally protecting one another’s lives. “You never get to fulfill the authenticity of that bond,” Ortega said. “In high-kinetic situations where you’re exchanging rounds, you want to know the person standing next to you, because that’s all that counts at that moment.”
Given these concerns, the Obama administration moved to undo the ban on open trans military service in 2016. The Department of Defense argued at the time that it “must have access to 100 percent of America’s population for its all-volunteer force to be able to recruit from among the most highly qualified, and to retain them.”
Trump apparently wasn’t persuaded by the argument or the concerns behind it. In July 2017, he tried to resurrect the ban with three tweets — arguing that letting trans people serve in the military would be too disruptive and costly, because they would require special care for trans-related medical issues.
Trump cited costs and military readiness to defend his decision, but the evidence is against him
The arguments raised by Trump, however, have been studied repeatedly. Researchers have found, looking particularly at the experiences of other countries like Israel and Canada where trans people serve openly, that lifting the US’s ban would have little to no effect on military readiness or costs.
The best evidence comes from a 2016 review of the research by the RAND Corporation. Here are the big takeaways from the report:
- Trans people would make up a small part of the military — and few would seek out gender-affirming care. Based on RAND’s estimates, trans troops make up around 2,450 of the 1.3 million active-component service members — a fraction of a percent of the US military. While some trans service members would seek treatment, RAND pointed out that only a small subset would: “Estimates derived from survey data and private health insurance claims data indicate that, each year, between 29 and 129 service members in the active component will seek transition-related care that could disrupt their ability to deploy.”
- As a result, trans service members would have little to no effect on military readiness. RAND concluded that “the readiness impact of transition-related treatment would lead to a loss of less than 0.0015 percent of total available labor-years in the active component.” In comparison, “in the Army alone, approximately 50,000 active-component personnel were ineligible to deploy in 2015 for various legal, medical, or administrative reasons — a number amounting to around 14 percent of the active component.”
- Trans-related treatment would also cost the military very little. RAND found, “Using private health insurance claims data to estimate the cost of extending gender transition–related health care coverage to transgender personnel indicated that active-component health care costs would increase by between $2.4 million and $8.4 million annually, representing a 0.04- to 0.13-percent increase in active-component health care expenditures.”
This small cost may not mean much in budget terms, but it could mean a lot to trans soldiers: As the American Medical Association (AMA) and American Psychiatric Association (APA) point out, transitioning helps reduce gender dysphoria — which could mean fewer mental health issues for some trans people serving in the military.
This is the kind of evidence that led the Obama administration to conclude that it could allow trans people to serve openly: It would slightly expand the recruitment pool, while posing minimal to no costs and hurdles. Yet Trump, citing no evidence of his own, apparently decided to undo all of that progress.
Trump’s decision was reportedly more about politics than policy
Quickly after Trump made his announcement, details started leaking out about what the real reason for the move — which came as a shock to many in Washington, including the military — was.
According to a report from Rachael Bade and Josh Dawsey at Politico, Republican hardliners in the House at first asked James Mattis, then the secretary of defense, to immediately ban Pentagon payments for gender-affirming surgeries. Mattis refused, arguing against acting so quickly.
The same hardliners then went to Trump. To their surprise, Trump didn’t just ban such payments; he decided to ban all trans service members too. “This is like someone told the White House to light a candle on the table and the [White House] set the whole table on fire,” a senior House Republican aide told Politico.
The president moved so quickly, in fact, that members of the military were apparently not alerted about the policy change before Trump’s tweets. The White House also took weeks to send out an official guidance securing the change, leaving the military unable to actually implement the policy after his tweets went out.
And neither the White House nor the military initially seemed to have any idea how Trump’s ban would be implemented. At a daily press briefing on the day of Trump’s tweets, White House spokesperson Sarah Huckabee Sanders said, “That’s something that the Department of Defense and the White House will have to work together as implementation takes place and is done so lawfully.”
So why was Trump so eager for this fight? According to Politico, the House Republicans who went to Trump reportedly threatened to torpedo plans for more military spending and funding for the wall at the US-Mexico border if he didn’t comply. Trump apparently saw that as too big of a threat to his policy agenda.
One Trump administration official told Jonathan Swan at Axios that the move was also politically motivated: “This forces Democrats in Rust Belt states like Ohio, Michigan, and Wisconsin to take complete ownership of this issue. How will the blue collar voters in these states respond when senators up for re-election in 2018 like Debbie Stabenow are forced to make their opposition to this a key plank of their campaigns?”
Similarly, Politico reported that “one White House official said the decision would be ‘seen as common-sense’ by millions — though likely vociferously protested by others.”
“It’s not the worst thing in the world to have this fight,” the official said.
In short, this seemed more a political move to shore up support among Trump’s base and to bolster his defense and border wall plans than a genuine concern over the supposed costs that Trump tweeted about. Trump was effectively sacrificing trans people’s rights because he saw it as politically expedient.
Trump keeps letting down LGBTQ people
On a broader level, the attempt at bringing back the ban was just the latest sign that Trump was not the uniquely pro-LGBTQ Republican he previously tried to characterize himself as.
On the campaign trail, Trump said he would be different — the first Republican president to embrace LGBTQ people. He said the key acronym (“L, G, B, T … Q”) at the 2016 Republican convention. He held up a Pride flag at a campaign event. He initially defended the right of Caitlyn Jenner, a transgender woman, to use the bathroom that aligns with her gender identity. He tweeted, “Thank you to the LGBT community! I will fight for you while Hillary brings in more people that will threaten your freedoms and beliefs.”
Yet while he decided to maintain workplace protections against discrimination based on sexual orientation and gender identity for federal employees and contractors, the rest of his personnel and policy actions have signaled an anti-LGBTQ approach.
For one, the administration has been largely made up of politicians who’ve been anti-LGBTQ for their whole public careers, like Vice President Mike Pence and former Attorney General Jeff Sessions. Both men have long histories in Congress of opposing civil rights measures for LGBTQ people, including workplace protections and hate crime laws — yet they have major roles in shaping the administration’s agenda. Just a day before Trump tweeted his decision to ban trans soldiers, Foreign Policy reported that Pence was working to reverse the Obama administration’s trans-friendly policies.
In 2017, the Trump administration also rescinded transgender protections for kids in federally funded schools. That reversed a guidance from the Obama administration that asked publicly funded K-12 schools to respect and protect trans students’ rights, including their ability to use the bathroom and locker room that align with their gender identity.
That same year, Trump’s Department of Justice also rescinded a memo that protected trans workers — interpreting federal law to not ban discrimination based on gender identity in the workplace.
“He campaigned saying that he would be a good friend to LGBT people,” James Esseks, director of the ACLU’s LGBT and HIV Project, previously told me. “Actions speak far louder than words. And what he’s done has been a wreck.”
Trump also seems ready to go even further. He has said, for example, that he would support the First Amendment Defense Act, which would allow discrimination against LGBTQ people on a religious basis.
Altogether, this paints a very different picture of Trump than we saw on the campaign trail. And more than just showing Trump’s dishonesty, the shift threatens the rights of millions of LGBTQ Americans — including those willing to sacrifice their lives in service to their country.