Democratic presidential candidate Joe Biden has been vague about his plans for the military if he wins the election, but one specific promise he has made is to roll back the Trump administration policy that effectively bars transgender service members from serving openly in accord with their gender identity.
But it is unclear how quickly a Biden effort would be able to reverse the Trump rules. Meanwhile, a Trump victory in Tuesday’s election would add significance to several cases challenging the current policy that are winding their way through the federal courts. If one or more of those cases end up in the Supreme Court, the recent confirmation of Amy Coney Barrett, a favorite of social conservatives, could mean that legal challenges to the rules would have to clear a particularly high final hurdle.
Defense Department policy on whether and how transgender individuals can serve in the military has zigzagged during the past several years. Prior to 2016, transgender people were, in the Pentagon’s words, “generally disqualified” from serving. (In reality, this meant they could not serve in the gender they identified with.)
In July 2016, after commissioning a RAND Corp. study that found allowing transgender people to serve openly in the military was likely to have “little or no impact on unit cohesion, operational effectiveness, or readiness,” the administration of President Barack Obama announced a new policy allowing transgender people to serve in the gender they identified with. That state of affairs lasted roughly a year, until President Trump issued a series of tweets on July 26, 2017, that stated his administration would not allow “transgender individuals to serve in any capacity in the U.S. military.”
Although Trump said he had made the decision “after consultation with my Generals,” it soon became clear that the decision had taken the Pentagon leadership by surprise, and it took until March 2019 for the department to issue a new policy, which allows transgender people to serve only in their biological sex, and only if they have not had a recent diagnosis of gender dysphoria, a feeling of distress that can occur when a person’s gender identity differs from their sex assigned at birth. (The 2016 RAND report estimated that there were between 1,320 and 6,630 transgender personnel serving in the active-duty military, but some estimates put the number in the total military as high as 15,000. Those who were already serving in their gender identity before the Trump guidelines went into effect are exempt from it.)
Although the Pentagon denied that this amounted to a “ban” on transgender individuals serving in the military, Peter Renn of Lambda Legal, an LGBTQ civil rights organization, said that is effectively what it is, because it bars transgender people from serving in their gender identity.
“It’s no small thing to say you can’t live in a manner that is consistent with who you are,” said Renn. “You should not have to give up who you are as the price of serving your country.”
Biden’s promise to reverse the Trump rule is spelled out on his campaign website: “Biden will direct the U.S. Department of Defense to allow transgender service members to serve openly, receive needed medical treatment, and be free from discrimination.”
But it’s unclear how long it will take an incoming Biden administration to reverse the Trump rules, or even whether the goal would be to simply return to the policy of 2016, or to craft a new one. Asked how quickly the Defense Department could revert to the 2016 plan if directed to do so, a Pentagon spokesperson responded that the department “doesn’t comment on hypothetical scenarios.”
To Renn, there should be “no difficulty at all” in returning to the Obama administration policy. “There is already a blueprint for open service in the military, which is the one that the military itself came up with in 2016,” he said, adding that under Obama the Defense Department even published a 72-page “Implementation Handbook” that laid out what transgender service members, their colleagues and commanders could all expect from the new guidelines.
As a result, according to Renn, “it wouldn’t take very much effort at all, beyond a snap of the finger, to have that system reactivated and to basically wipe away the discriminatory policy that’s currently in effect.”
But according to Peter Perkowski, legal and policy director of the Modern Military Association of America, Biden is likely to take a more deliberative approach. “I doubt Biden would simply issue a reversal,” he said, adding that Biden would probably consult with advisers and his newly installed defense secretary before coming up with a plan. “Tweeting policy is not what he’ll do.”
However, that wouldn’t necessarily mean that transgender service members would still face official discrimination while the new administration decides how best to discard the Trump rules, according to Perkowski. More likely, the new defense secretary would suspend enforcement of the current guidelines while the Pentagon figures out “the procedural proper way to unravel and undo what’s happened over the past three years,” he said, adding that this was the approach taken by the Obama administration in 2015 before it settled on a new plan the following year.
There are four cases in the federal courts challenging the Trump policy, in Seattle, Washington, D.C., Maryland and California, according to Renn, who represents the plaintiffs in Karnoski v. Trump, the case in Seattle. (Ryan Karnoski is a 22-year-old transgender man in Seattle who, according to Lambda Legal, wishes to become a military officer.) All four cases are currently in the process of discovery, with the federal government “fighting very hard” to avoid having to disclose the documents used in creating the Trump plan, Renn said.
A Biden victory would likely render those cases moot, according to Perkowski. “I don’t see these cases continuing under a Biden administration,” he said.
However, according to Renn, even after a Biden victory the court might decide to continue with one or more of the cases. “There are various exceptions that courts apply, even when the government changes its policy,” he said. Among other factors, the court must ask itself whether it is “likely that this discrimination would recur again in the future, such that it makes sense to reach a decision on this,” he added.
If Trump is reelected, then the court cases will proceed unless he changes his own policy, which seems unlikely. The Seattle case is scheduled to go to trial in April, according to Renn. Ultimately, he said, “there is certainly a chance” that one or more of the cases might wind up before the Supreme Court. However, although most observers consider Barrett a social conservative, Renn said it is “too early to tell” how the military’s transgender guidelines would play out in front of the newly composed court.
He noted that in June the Supreme Court ruled 6-3 that federal civil rights law protects gay and transgender people from workplace discrimination. The late Justice Ruth Bader Ginsburg cast one of the six majority votes, but even if Barrett, her replacement on the court, voted differently in a future case over transgender rights, “there were still another five votes in favor of recognizing that discrimination against LGBT people is illegal under federal law,” Renn said. “It was a powerful recognition that who you are and who you love shouldn’t limit your opportunities, and that’s really the same principle at the end of the day that we’re seeking to vindicate in these military cases as well.”
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