Amid all the stormy revelations about porn stars and firings and attorney flight enveloping the White House, you may have missed the weekend news dump on Donald Trump's new transgender military ban. Similar to Trump's first and second Muslim ban attempt, the second iteration of the transgender ban isn’t any better than Trump’s original policy-by-tweet announcement. And yes, it's effectively an all-out ban, even if some transgender troops who are already serving will be allowed to continue for now.
The Pentagon report laying out the new transgender policy states: "Nothing in this policy precludes service by transgender persons who do not have a history or diagnosis of gender dysphoria and are willing and able to meet all standards that apply to their biological sex.”
That is at best misleading and can likely be more accurately characterized as false. The new policy is tantamount to saying, nothing precludes transgender service so long as one isn't transgender. In fact, the new Defense Department guidelines require transgender troops to serve their country in a capacity that's consistent with the sex they were assigned at birth. As the DOD report puts it:
Transgender Persons Without a History or Diagnosis of Gender Dysphoria, Who Are Otherwise Qualified for Service, May Serve, Like All Other Service Members In Their Biological Sex. (emphasis added)
In other words, it does preclude transgender service. It's actually more insidious than the military’s defunct "don't ask, don't tell" policy that banned openly gay service. Under that law, lesbian and gay Americans could supposedly serve as long as they didn't admit to being gay—but it didn't ask them to turn straight. As National Center for Lesbian Rights legal director Shannon Minter told NBC:
“This is worse than ‘don't ask, don't tell’ in its justification … It would be as though the government had tried to justify the DADT policy by saying that you can serve in the military if you say you will stop being gay.”
With DADT, which was ended in 2011, “the government never went so far as to say that being lesbian or gay is not a legitimate identity and [lesbians and gays] should undertake therapy to become straight, but that is what this report is saying about transgender people,” according to Minter.
If that sounds insane, that's likely because the policy was designed by deranged people. The administration has defied a court order to disclose names of the experts they "consulted" on the policy, claiming it as "potentially privileged information about presidential deliberations." But Slate's Mark Joseph Stern writes:
According to multiple sources, Vice President Mike Pence played a leading role in the creation of this report, along with Ryan Anderson, an anti-trans activist, and Tony Perkins, head of the Family Research Council, an anti-LGBTQ lobbying group.
Unsurprisingly, the Pence-led DOD report concludes that transgender troops harm military readiness, a canard that was also used for nearly twenty years to justify the military's “don’t ask, don’t tell” policy. It turned out to be a totally false assertion as was proven over the 17 years it took to repeal the gay ban. Similarly, the RAND Corporation studied transgender service in Australia, Canada, Israel and the United Kingdom, and came to the exact opposite conclusion from the Pence-Perkins team.
In no case did the RAND team find evidence of an effect on operational effectiveness, operational readiness or cohesion.
The Trump administration's conclusion is indeed so unsupportable on several levels that Slate's Stern argues it will never survive in court.
The Trump report disavows this [RAND] conclusion by pointing out that each country reported some initial “resistance in the ranks”—which, it argues, “is a strong indication of an adverse effect on unit cohesion.”
Courts are unlikely to find that this concern justifies Trump’s ban. Private prejudice against transgender people cannot justify invidious discrimination, and former military leaders have already testified that the trans-inclusive policy had no deleterious effects. Moreover, this claim is padded out with language questioning whether treatment genuinely helps transgender people, asserting that their “high rates of mental health conditions” are not truly allayed by transition. This is dangerous nonsense; transition care has proved highly effective at treating gender dysphoria and accompanying conditions. Yet the new policy would prevent trans service members from transitioning, thereby forcing them to continue living with a treatable condition.
A federal judge in Washington, D.C., has already blocked most of Trump’s original transgender ban ruling it violated the equal protection clause of the Constitution (the D.C. Circuit Court of Appeals also declined to stay that preliminary injunction). A Baltimore federal judge made a similar ruling on equal protection grounds.
The specious arguments concocted by ‘phobes like Mike Pence and Tony Perkins likely aren’t going to satisfy these constitutional concerns even if it took them more time to cook up than it did for Trump to issue a random tweet last summer announcing his ill-considered policy change.