Find a Local Government Lawyer Near You

  • 1
    • Government Discrimination
    • Government Agencies/Programs
    • Education and Schools
    • Social Security - Retirement
    • Social Security - Disability
    • Veterans Benefits

Understanding Trump’s Military Transgender Ban

The relationship between Trump and the LGBT community is a confusing one to say the least–at least for Trump himself. During the election he repeatedly said that he would be better for the LGBT community than Hilary Clinton. At the same time, he went back and forth until finally coming out against transgender people using the bathroom of the gender they identify as. He also told Fox News he would “strongly consider” Supreme Court Justices who might reverse the famous Obgerfell ruling making same-sex marriage a constitutional right. As President he’s rolled back LGBT protections put in place by the Obama administration. During LGBT Pride Month, he decided not to make the now-traditional statement of support to the LGBT community. At this point, it’s pretty fair to say that-at a minimum-LGBT rights are not a priority for Trump.

Trump proved this once again after, just a few days back, he announced–through Twitter of all things–that he intends to ban transgender people from the military. The change, if made official, will have some serious repercussions which are worth taking a look at. With that in mind, let’s take a look at what Trump’s announcement will mean. However, in order to fully understand the implications of the decision, it’s worth starting with a look at the legal history between the LGBT community and the military.

History of the LGBT Community in the Military

The history between the military and the LGBT community has not always been the most friendly one to say the least. In 1921 the military declared homosexuality and “feminine characteristics” could render a man unfit for service. In ’42 the U.S. Selective Service System said that being homosexual disqualified somebody from the draft.

transgender banThings only got worse from there. In 1950, Army Regulation 600-443 made homosexuality an offense subject to court martial. If the person wasn’t “active” (openly gay) and was a “non-aggressive” homosexual (they didn’t have sex with men) they could leave the service with a honorable discharge. Otherwise, they’d either face court martial or be forced to take a dishonorable discharge depending on their situation. Transgender persons faced similar restrictions on service.

In 1972, homosexuality was once again confirmed as grounds for discharge or dismissal under Army Regulation 635-200. Just four years later, a court upheld this as grounds for dismissal in the case of a U.S. Air Force Technical Sergeant.

In four more years, in 1980, a federal district court finally ruled that discharging an Army Sergeant for being homosexual violated her First Amendment rights. The Army, however, chose to ignore the court’s ruling altogether. Eventually, unfortunately for the Sergeant in question, a federal appeals court once again sided with the military and the Supreme Court refused to hear her case. This was the state of the case law for quite some time, the Department of Defense issued directives stating that homosexuals were banned from military service in 1981 then followed up with similar statements three more times over the years–most recently in 2008.

However, even before 2008 there was a fair bit of movement on the state of the law when it came to LGBT persons in the military. The most famous of these changes came in 1993 with the advent of “Don’t Ask, Don’t Tell.” The policy, introduced by President Clinton, wasn’t actually a particularly enormous shift. Being LGBT remained an offense that would get you discharged (often dishonorably discharged) from the military. The policy forbad harassment or discrimination against closeted LGBT persons but still barred openly LGBT people from military service.

It wasn’t until two years into the Obama administration, in 2010, that things finally started really changing for the better. In early 2010, guidelines came out of the Pentagon which slightly increased protection from unproven allegations under “Don’t Ask, Don’t Tell.” However, the real change came at the end of the same year when Congress repealed “Don’t Ask, Don’t Tell” entirely. This lifted the ban of gays and lesbians serving in the military.

The situation was still no better for transgender persons wishing to serve. It would take another six years until their ban was finally lifted in 2016.  It had been a long battle for the transgender community, but they were finally allowed to serve their country if they so chose. Along with this change came access to the military’s medical insurance to help in transitioning genders. This occurred first, and most famously, with well-known military whistleblower Chelsea Manning. However, with Trump’s new change, these benefits are likely to be disappearing after only about a year.

The Effects of the Trans Ban

The obvious effect of Trump’s action-should it be made more official than a tweet-would be to bar transgender people from enlisting in the military. However, the less obvious issue is what will happen to the transgender people who have already joined the military in the last year. The Trump Administration has made it clear that they intend to follow through on Trump’s tweets. However, just how they will has not yet been fully explained.

The advent of “Don’t Ask, Don’t Tell” led to thousands of honorable and dishonorable discharges for homosexual service members. To make matters worse, the discharges often listed “homosexuality” as the reason for their discharge. These discharges are a member of public record, essentially outing these service members to employers or nearly anybody who cared to find out.

Just in the last year, as many as 15,000 transgender people have enlisted in the various branches of the military or came out as openly transgender after it seemed they would not be punished. Now they may face the same fate as the victims of “Don’t Ask, Don’t Tell.”If they end up facing dishonorable discharges it would take away basically all health and education benefits they would otherwise receive from their service.

As it is, military leaders have refused to take any action until the Department of Defense issues official guidelines and formal guidance on how they should proceed. For now, the only real action has been a delay on fully lifting the ban on transgender people in the military until January of 2018-a move that won’t affect people already enlisted. However, if the White House follows through on its plans, the reprieve will be short-lived.

Trump’s tweets cited medical costs and “loss of focus” as justifications for his ban, although he provided no support for these assertions beyond vague references to outside guidance. Trump’s actions may be in response to a bill defeated in Congress earlier this month which would have stopped the Pentagon from paying medical costs related to gender transitioning. Laws both protecting and curtailing these rights continue to develop in Congress from both sides of the aisle. It seems unlikely that the overall costs of allowing transgender people into the military will outweigh the benefit. As former Defense Secretary Ash Carter said when lifting the ban last year, “we can’t allow barriers unrelated to a person’s qualifications prevent us from recruiting and retaining those who can best accomplish the mission.” The very act of threatening a reinstatement of the ban, regardless of whether Trump follows through, undermines this goal. Trump isn’t just undermining the rights of the LGBT community, he’s potentially undermining the military itself.


Leave a Reply * required