The military will begin enforcing President Donald Trump's restrictions on transgender troops on April 12, according to a Pentagon memo, which drew rebukes from Democratic lawmakers and civil rights advocates who decried the change as bigoted.
The memo stipulates that a history of gender dysphoria would disqualify applicants to the military unless they have been stable in their biological sex for 36 months, are willing to abide by the rules for that sex, and have not transitioned and do not need to in the view of medical providers.
Those who were already in the military or under contract to join before the start date will fall under the 2016 policy enacted by the Obama administration. That policy allowed people who have transitioned to join the military and gave those already serving an opportunity to transition while in the armed forces.
It also allowed service members to change their gender marker in the military system and abide by uniform, grooming and facilities rules for their new identity.
None of that is allowed under the new restrictions.
Under the new policy, secretaries of the military services will be given latitude to grant exceptions to certain individuals, who would then be able to access medical care in accordance with the old policy.
The decision by the Defense Department to begin enforcement of the policy comes more than a year and a half after Trump announced the ban by tweet in July 2017, surprising his own defense secretary.
"After consultations with my Generals and military experts, please be advised that the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military," Trump wrote at the time. "Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you."
The actual Pentagon policy that former Defense Secretary Jim Mattis formulated and rolled out after the tweet stopped short of a categorical ban, according to defense officials. It allows transgender individuals to serve in the military, so long as they aren't diagnosed with gender dysphoria, haven't transitioned sex and don't need to, and submit to rules for their biological gender regarding uniforms, grooming and facilities.
Critics, however, say those rules amount to a de facto ban, because they essentially allow transgender people to serve in the military only if they refrain from transitioning or engaging in activities that allow them to live out their identity on the job. The policy also bans those who have already transitioned sex from joining outright.
Democrats, who are hoping to reverse the ban through bipartisan legislation introduced in Congress, immediately criticized the Pentagon's decision to begin enforcing the measure.
"Anyone who is qualified and willing should be allowed to serve their country openly," House Armed Services Committee Chairman Adam Smith, D-Wash., said in a statement. "Make no mistake, this is a discriminatory ban on transgender people, not a ban on a medical condition, and we will continue to fight against this bigoted policy."
Civil rights advocates said transgender individuals should be able to serve the military like everyone else who meets the standards required for the job.
Jennifer Levi, transgender rights project director at GLBTQ Legal Advocates and Defenders, called the Pentagon's enforcement of the new rules "deeply immoral and deeply insulting to the many transgender troops who are bravely serving their country."
"Military leaders, medical experts, and the vast majority of the American public agree that our troops deserve gratitude and support, not a slap in the face based on bias and irrational fears," Levi said.
The rollout of the memo days before acting defense secretary Patrick Shanahan is due to appear before the Senate Armed Services Committee on Thursday adds a level of tension to a testimony already expected to include hostile questions over Trump's decision to take Pentagon funds without congressional approval for a border wall. Shanahan, a former Boeing executive who is hoping to get the nod from Trump to replace Mattis on a permanent basis, has testified before Congress only once before, during his confirmation hearing to become deputy secretary.
The Pentagon's decision to press forward with implementing the new restrictions comes after a number of court cases challenged the measure in court, leading to injunctions that delayed the policy's implementation for months.
But in January, the Supreme Court, in a 5-4 vote along partisan lines, allowed Trump's broad restrictions to go into effect. The legal battle continued in the lower courts, and lawyers representing the claimants have argued that ongoing proceedings in the U.S. Court of Appeals for the D.C. Circuit should have prevented the Pentagon from moving ahead.
Attorneys representing transgender service members and prospective troops in the case in Washington have not decided whether to seek review by the full court by a March 29 deadline. An initial three-judge panel of the same court sided with the government.
The lawyers said in a court filing Tuesday that until the window has closed for their clients to seek a review by a full complement of D.C. Circuit judges, the earlier injunction remains and the government cannot move ahead with implementing its broad new restrictions.
“The constitutional rights and livelihoods of thousands of prospective and current transgender service members are at stake, and no one — neither plaintiffs, nor the government, nor the public — would benefit under a scenario where the government proceeds as if the injunction has been dissolved,” the court filing said.
Because the Pentagon restrictions do not go into effect until April 12, the court proceedings theoretically could be resolved by then, though it would be a quick turnaround. If they progress past that date, the Pentagon could be forced to further delay implementation.
Transgender rights activists, meanwhile, have been urging the public to get behind the legislation proposed in Congress in a bid to override Trump's decision.
“We will continue our fight in the courts until the ban is permanently blocked,” said Shannon Minter, legal director for the National Center for Lesbian Rights. “We also strongly support the bipartisan efforts of congressional leaders to pass urgently needed legislation to protect transgender troops. We urge everyone who cares about the integrity of our military and the well-being of our troops to contact your representatives and tell them to support this legislation.”