Trump writes Pres. memo, “Military Service by Transgender Individuals”

This presidential memo reinstates the long-standing ban on transgender military service.

On August 25, President Trump issued a memorandum directing the Secretary of Defense and Secretary of Homeland Security to reinstate the prohibition on openly transgender military service members.

Section 1(a) of the memorandum outlines the history of the prior prohibition on military service by transgender individuals. Prior to June 2016, transgender persons were prohibited from joining the military and, if already serving, discharge based on this status was appropriate. At the Palm Center, a group of current and former military professors describe the pre-2016 policy as “an outright ban that was premised on the general presumption that transgender Americans are unfit to serve in the armed forces.”

At the New York Times, Jonah Engel Bromwich recaps the major changes to the policy during the Obama administration. After a study commissioned by then-Secretary of Defense Ash Carter found that the open service of transgender individuals would “cost little and have no significant impact on unit readiness,” Carter announced in June of 2016 that transgender military could serve openly. Further, these members can no longer be discharged or otherwise separated from the military for their status as transgender.

Section 1(b) of the memo repeals the June 2016 decision to reinstate the prior complete prohibition of transgender service members:

Accordingly, by the authority vested in me as President and as Commander in Chief of the Armed Forces of the United States under the Constitution and the laws of the United States of America, including Article II of the Constitution, I am directing 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 time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not have the negative effects discussed above.

Section 2 describes the directives for the Secretary of Defense and Secretary of Homeland Security. While Section 1(b) would primarily effect existing openly service transgender individuals, Section 2(a) triggers the prohibition on accepting new individuals into military service. Section 2(c) phases out medical treatment regarding transgender individuals by specifically targeting the funding source for sex reassignment surgeries. The Secretaries shall:

(a)  maintain the currently effective policy regarding accession of transgender individuals into military service beyond January 1, 2018, until such time as the Secretary of Defense, after consulting with the Secretary of Homeland Security, provides a recommendation to the contrary that I find convincing; and

(b)  halt all use of DoD or DHS resources to fund sex reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.

Section 3 illustrates the timeline for these policies and directives to take effect.

From the language of this section, it appears that the June 2016 policy will remain effective until March 23, 2018. During this time, the Secretaries will create a plan to “determine how to address transgender individuals currently serving in the United States military” and “what steps are appropriate and consistent with military effectiveness and lethality, budgetary constraints, and applicable law.” If the plan is not created, Section 2(a) will kick in to extend the June 2016 policy past its current January 1, 2018 deadline.  Then, Sections 1(b) and 2(b) will take effect on March 23, 2018. However, “no action may be taken against such individuals under the policy set forth in section 1(b)” until the implementation plan is created by the Secretaries.

Section 2(a) of this memorandum shall take effect on January 1, 2018.  Sections 1(b) and 2(b) of this memorandum shall take effect on March 23, 2018.  By February 21, 2018, the Secretary of Defense, in consultation with the Secretary of Homeland Security, shall submit to me a plan for implementing both the general policy set forth in section 1(b) of this memorandum and the specific directives set forth in section 2 of this memorandum.  The implementation plan shall adhere to the determinations of the Secretary of Defense, made in consultation with the Secretary of Homeland Security, as to what steps are appropriate and consistent with military effectiveness and lethality, budgetary constraints, and applicable law.  As part of the implementation plan, the Secretary of Defense, in consultation with the Secretary of Homeland Security, shall determine how to address transgender individuals currently serving in the United States military.  Until the Secretary has made that determination, no action may be taken against such individuals under the policy set forth in section 1(b) of this memorandum.

Author: Amanda L. Hass

Amanda L. Hass graduated magna cum laude from Loyola University of New Orleans, College of Law, earning a Juris Doctor and Certificate in Social Justice. She was a member of the Loyola Law Review and a William L. Crowe Scholar. From 2016 to 2017, Ms. Hass was an extern for Senior Judge Ivan L.R. Lemelle of the Eastern District of Louisiana and a student practitioner in the Workplace Justice Clinic.