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Lawmakers seek to permanently end transgender military ban

Biden’s order reverses Trump’s, which in turn had nixed an Obama policy

President Joe Biden salutes as first lady Jill Biden, Vice President Kamala Harris and second gentleman Doug Emhoff watch military bands march past the east steps of the Capitol after Biden was sworn in as the 46th president.
President Joe Biden salutes as first lady Jill Biden, Vice President Kamala Harris and second gentleman Doug Emhoff watch military bands march past the east steps of the Capitol after Biden was sworn in as the 46th president. (Bill Clark/CQ Roll Call)

Members of Congress who support transgender people serving openly in the armed forces are already planning to try to enshrine in law President Joe Biden’s freshly minted executive order permitting such service.

The White House announced Monday a revocation of a Trump administration policy that largely barred transgender people from serving in the armed forces. 

Biden’s order “immediately prohibits involuntary separations, discharges, and denials of reenlistment or continuation of service on the basis of gender identity or under circumstances relating to gender identity,” according to a White House information paper. 

Defense Secretary Lloyd Austin said in a statement he will implement over the next 60 days the policies and procedures that follow from the order.

“This is the right thing to do,” he said. “It is also the smart thing to do.”

Biden’s order reverses President Donald Trump’s, which in turn had nixed a policy of President Barack Obama — three conflicting presidential orders in fewer than five years.

Now members of Congress want to make sure Biden’s policy becomes a matter of law, not just an executive order — and consequently more difficult to reverse. 

‘Shameful and bigoted’

The most likely vehicle for such a measure is the upcoming defense authorization bill, or NDAA, covering fiscal 2022. But the inclusion of a provision forbidding any prohibition on transgender service personnel could complicate passage of that defense policy measure, which has become law for 60 consecutive fiscal years. 

Rep. Jackie Speier, the chairwoman of the House Armed Services Military Personnel Subcommittee, has championed overturning Trump’s ban in law. She said Monday she will continue that push this year. 

“Today’s executive order corrects one of the most shameful and bigoted decisions of the previous administration and an ignominious chapter in our country’s history,” the California Democrat said in a statement. “To prevent a future president from backsliding, I intend to add a provision to this year’s defense policy bill to secure a permanent policy of nondiscrimination for our armed forces.”

Jennifer Dane, an Air Force veteran who is executive director of the Modern Military Association of America, a leading advocate for LGBTQ servicemembers and veterans, said that, after the whiplash effect of conflicting executive orders, her group’s “biggest hope is that this reversal becomes codified into law like the repeal of Don’t Ask, Don’t Tell, to ensure this never happens again. Any individual qualified and capable of joining the military should have the right to serve, period.”

Democrats on the Armed Services panels, led in the House by Washington’s Adam Smith, have regularly supported such a change in law. But they have not pushed too hard for it, for fear that such a hot-button issue could jeopardize the odds of enacting the NDAA.

Last year, neither the House nor the Senate NDAA addressed the transgender ban. Speier got a floor amendment adopted in the House’s defense spending bill, but it was not included in the final version.

Now, with a Democrat as president and the party enjoying slim majorities in both chambers, a statutory change appears more likely. 

Readiness question

The Trump policy referred to “gender dysphoria” as a “defect” and a “deficiency.” But all the service chiefs have testified that transgender service has no noticeable effect on morale, readiness or unit cohesion. 

But the ban, in fact, undermines those military values, three former military surgeons general said in a November 2020 report from the Palm Center, a research group that advocates open military service by transgender people. 

Majorities in the public and in the armed forces, meanwhile, support transgender people serving openly in the military. 

An estimated 14,700 U.S. military personnel identified as transgender, though not all have undergone hormone treatments or surgery, according to a 2019 analysis of Defense Department data by the Palm Center.

Dueling orders

The U.S. military had barred service by transgender people until 2016, when the Obama administration issued a policy permitting it that would have taken effect in July 2017.

But Trump ordered Obama’s policy reversed in a July 26, 2017, tweet. 

Trump’s policy said the military must no longer accept transgender recruits or permit people already in the service to change their gender and remain in the military.  

Trump’s restrictions did not take effect until 2019, due to legal challenges and additional reviews. 

Under Trump’s 2019 policy, only those servicemembers who had already signed up or served in the military prior to the effective date could continue with any plans for gender transition if they were diagnosed with gender dysphoria — and no transgender recruits could be accepted.

Niels Lesniewski contributed to this report.

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