Breaking Down the Ban

Earlier this week, the United State Supreme Court issued two stays of injunctions, allowing a Trump administration policy barring transgender people from serving in the military to go into effect while cases against the policy proceed in lower courts.

If you’ve noticed some coverage of this case describing it as a “partial ban,” that’s because there are two exceptions baked into the now-implemented policy, which you can read in its entirety.

First, openly transgender individuals who are currently serving in the military will be allowed to continue their service, though there’s a caveat about “deployability” which I will return to shortly.

Just two and half years ago, on June 30, 2016, the Obama administration lifted the long-standing ban on transgender personnel. Known as the “Carter policy” since it was officially announced and implemented by then Defense Secretary Ashton B. Carter, the move came after the release of a commissioned RAND Corporation study which found that allowing transgender personnel to serve openly would have “minimal impact on readiness and health care costs.”

The same study estimated that between 1,320 and 6,630 transgender people were already serving on active duty. A more recent study, released by the Palm Center in in 2018, puts that number at closer to 14,700.

In the time since the ban was lifted, a portion of those service members — an estimated 900 active duty personnel — have begun the process of transitioning. It’s worth noting here that there are service members who came out before the Carter policy took effect, and it’s entirely possible that more have been serving openly under the Carter policy without transitioning. However, I haven’t been able to find any estimates on either of those populations.

The 2018 memo describing the Trump administration’s new policy on transgender service members indicates that those who began serving openly since the Carter policy will be exempt from the ban: “The reasonable expectation of the Service members that the Department would honor their service on the terms that then existed cannot be dismissed…[they] may continue to receive all medically necessary treatment, to change their gender marker…and to serve in their preferred [sic] gender, even after the new policy commences.”

However, the new policy also includes an exception to the exemption: “the Service member…may not be deemed to be non-deployable for more than 12 months or for a period of time in excess of that established by Service policy (which may be less than 12 months).”

On it’s face, this caveat seems reasonable — it is the Department of Defense’s standard policy that “Service members who are considered non-deployable for more than 12 consecutive months will be evaluated for a retention determination by their respective Military Departments.”

Yet, the new policy on service by transgender individuals seems to have little leeway, whereas the broader policy for all military personnel allows that the “Secretaries of the Military Departments may retain Service members who are non-deployable in excess of 12 consecutive months, on a case-by-case basis, if determined to be in the best interest of the Service.” It’s entirely unclear to me, however, which of these policies would take precedence.

Furthermore, the 12-months non-deployable clause can be “gamed.” While I am not aware of any formal data on this, service member Cathrine Schmid suggests that some transgender military personnel are already being considered non-deployable for longer than necessary “as a sort of backdoor ban.”

If such manipulation seems unlikely, consider that in 2017 — before the announcement of the Trump administration’s policy — a similar backdoor move was used to discharge Riley Dosh, the first openly transgender graduate of West Point.

She recently shared her story in reaction to the new ban:

…As I prepared for my graduation from West Point, I was handed a memo from the Pentagon that said despite completing every requirement asked of me, I would not be allowed to commission as an officer. The reason? Despite the lifting of the ban on trans military troops by the Obama administration — one reason why I came out — I still required a medical waiver to become an officer. Both the previous administration and West Point supported my commission, but the Trump administration did not. Unable to receive a commission, I was discharged upon graduation. I remain the last person to be discharged for my gender identity.  Two months after my graduation, President Trump tweeted that transgender individuals would no longer be allowed to serve in the military.

While technically allowing current personnel to continue serving, the new policy creates a mechanism through which transgender troops can be forced out, and it certainly makes it clear they are not welcome.

But — I’ve only discussed one of the exceptions to the ban on transgender military service.

In a move reminiscent of don’t ask, don’t tell, the other exemption is for a sort of Schrödinger’s transgender person: a person who is somehow simultaneously trans and not trans. As the “New Transgender Policy” memo outlines:

Transgender persons who have not transitioned to another gender and do not have a history or current diagnosis of gender dysphoria — i.e., they identify as a gender other than their biological sex but do not currently experience distress or impairment of function in meeting the standards associated with their biological sex — are eligible for service, provided that they, like all other persons, satisfy all mental and physical health standards are are capable of adhering to the standards associated with their biological sex. This is consistent with the Carter policy, under which a transgender person’s gender identity is recognized only if the person has a diagnosis or history of gender dysphoria.

There’s a lot to follow in this paragraph, but it’s important to understand it. This argument is the most insidious part of the ban on transgender service members.

Gender dysphoria, as defined by the American Psychiatric Association, “involves a conflict between a person’s physical or assigned gender and the gender with which he/she/they identify…People with gender dysphoria may often experience significant distress and/or problems functioning associated with this conflict between the way they feel and think of themselves and their physical or assigned gender.”

A formal diagnosis of gender dysphoria from a medical professional is the first step in seeking medically-necessary care related to transgender health. However, it’s important to note that there’s a difference between experiencing gender dysphoria and seeking out a medical professional in order to receive a diagnosis of dysphoria.

The diagnosis serves as a gateway for additional medical care but does not alone demarcate who is transgender. A person may be transgender whether they receive a medical diagnosis of dysphoria or not.

Furthermore, while I’ll save the American Psychiatric Association’s history of gender diagnoses for another post, the inclusion of gender dysphoria as a psychological condition is not without controversy. As Dr. Daphna Stroumsa explains:

The inclusion of gender identity and transgender-related matters in the [American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders] reflects an inherent problem. Although diagnostic coding is necessary to facilitate access to medical and surgical transition care, the pathologizing and stigmatizing suggested by its designation as a mental disorder is not. Such designation gives rise to an inherent contradiction in terms: what is presented as a mental condition has recognized medical and surgical treatment. These treatments are aimed not at affecting or changing mental state but rather at addressing the physical components that lead to the dysphoria. Such logic makes GID or gender dysphoria a unique case of surgically treatable mental illness, which is an oxymoron.

In other words, while it represents a problematic pathologizing of the transgender experience, the existence of “gender dysphoria” as a validated medical condition helps transgender people receive the health care they need.

Now, let’s go back to that policy memo. “Transgender persons who have not transitioned to another gender and do not have a history or current diagnosis of gender dysphoria…are eligible for service.”

There are precisely two types of people who do not have “a history or current diagnosis of gender dysphoria”: people who do not experience gender dysphoria and people who suppress, hide, or otherwise bury their experience of gender dysphoria.

Those who do not or have never experienced gender dysphoria are not relevant to this ban at all — they are not transgender. Service members who are transgender, then, may only continue to serve if they steadfastly avoid disclosing or seeking any support for their experiences of dysphoria.

In other words, they can be transgender…as long as they’re not transgender.

Lawyer Chase Strangio describes this bind brilliantly:

…[The policy states that] trans people can serve as long as we don’t transition, are comfortable in our assigned sex at birth, and have no health care needs related to transition. But this is what defines a person as trans and why the ban is definitionally a ban on trans service. Yet, this idea that we can suppress our trans-ness or that our identity is less real than the identities of non-trans people is behind much of the anti-trans rhetoric we see in government policy and public discourse.  

And this is why I argue that this clause is the most insidious part of the ban on military service by transgender personnel.

It’s bad enough that the policy will bar good people from serving their country. It’s bad enough that current service members will be forced out or may choose to leave rather than serve in the face such bigotry. It’s bad enough that this discrimination is being justified by unfounded concerns about cost and cohesion.

But the most disturbing thing is that at its core, this policy suggests that transgender people have the choice to not be transgender; that their identity is not real, that it can be easily suppressed. This policy suggests that the concept of “transgender” doesn’t truly exist.

And that is unconscionable.

Transgender people exist and they have existed for far longer than we’ve had the word. It is no passing fad or modern invention, it a fundamental piece of the human experience. A piece we’ve collectively been suppressing and deriding for far too long. If the existence of transgender people seems like it’s “new” it is because we’ve only recently begun to grapple with a truth that has always been there.

The ban on transgender personnel serving in the military is just one element in a coordinated attack on the transgender community; an attack that aims to roll back the clock, to shove a whole population of people back in the closet and permanently lock them in there.

We cannot let that happen.

A new study from the CDC estimates that 2 percent of high schoolers — around three hundred thousand Americans — are transgender. And presumably, that number is depressed by significant underreporting. These young people are real. They exist. We cannot let them grow up in a world that would deign to tell them otherwise.

The transgender community will not be erased.

Here are a few things you can do to help:

Donate to one of these great organizations — or at the very least sign up for their mailing lists.

Call your representatives (Sorry, DC) — Even if you think they already agree with you, it’s good for them to know this is an issue their constituents are passionate about.

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