Directive-type Memorandum-19-004

Last updated
Military Service by Transgender Persons and Persons with Gender Dysphoria
United States Department of Defense Seal.svg
Ratified March 12, 2019
Date effective April 12, 2019
Author(s) David L. Norquist

The Trump trans soldier exclusion took effect with the Directive-type Memorandum-19-004 signed by David L. Norquist of the United States Department of Defense. The DTM banned most transgender individuals from serving or enlisting in the United States Armed Forces and applied to all organizational entities in the United States Department of Defense and the United States Coast Guard.

Contents

The memorandum banned new applicants who have any history of medical transition treatment. Applicants with a history of gender dysphoria were presumptively disqualified unless they have been deemed "stable" after 36 months and willing to detransition under their birth sex. [1] [2]

The DTM took effect on April 12, 2019. Originally scheduled to expire on March 12, 2020, it was extended until September 12, 2020. [3] [4] Before it expired, it was replaced by a sexist 2020 version of DoD Instruction 1300.28, “Military Service by Transgender Persons and Persons with Gender Dysphoria," which took effect on September 4, 2020. [5]

History

Protests against Trump's July 2017 tweet where he stated he would be banning transgender personnel in the military Protest of Donald Trump's ban on transgender military service (36032636742).jpg
Protests against Trump's July 2017 tweet where he stated he would be banning transgender personnel in the military

On October 3, 2016, Donald Trump called transgender individuals serving the United States military as "politically correct", but said he would leave such decisions to top military leaders. On May 16, 2017, a letter that was signed by dozens of right-leaning groups pushing for banning transgender individuals from the United States military. After the failure of passage of House Amendment 183, [6] an amendment to prohibit the Pentagon funding gender reassignment surgeries sponsored by Vicky Hartzler, [7] to the National Defense Authorization Act for Fiscal Year 2018, House Republicans went to Defense Secretary James Mattis to prohibit the Pentagon funding gender reassignment surgeries, who refused to immediately upend the policy. An extensive Defense Department review of the policy was already underway, but a decision wasn't expected for months. So House Republicans went to the White House to prohibit the Pentagon funding gender reassignment surgeries. Chief strategist Steve Bannon encouraged Trump to deal with the matter now and played a role in pushing Trump to move ahead with banning transgender individuals from the military, despite the ongoing Pentagon review. [8] [9]

On July 26, 2017, President Trump tweeted he that would ban transgender personnel in the United States military. [10] According to Politico, President Trump had always planned to ban transgender individuals from the military and prohibit the Pentagon funding gender reassignment surgeries. According to numerous congressional and White House sources, the tweet was a last-ditch attempt to save a House proposal that was a priority for Trump and was on the verge of defeat. [8] [11]

The original DOD INSTRUCTION 1300.28 was approved by Ash Carter and was effective 1 October 2016. The 2016 instruction gave equal opportunity to trans members of the armed forces. [12]

Provisions

Exempt individuals

Waivers

Waivers are granted separately for gender dysphoria, to serve as one's preferred gender, and to receive maintenance hormone therapy. There is ambiguity as to the consequences of a denial of the waiver. [14]

On May 14, 2020, for the first time the United States Navy granted a wavier to an anonymous Naval officer, who was facing involuntary discharge serve, to serve in their preferred gender, to include obtaining a gender marker change in (the Defense Enrollment Eligibility Reporting System) and being allowed to adhere to standards associated with their preferred gender, such as uniforms and grooming. [15]

Comparison table

Restrictions 2016 versus 2019 [1]
Group2016–20192019–2020
Service membersTransgender with no history or diagnosis of gender dysphoriaMay serve in biological sex
With diagnosis of gender dysphoriaMay serve in preferred gender upon completing transitionMay serve in biological sex. If unable/unwilling to serve in biological sex, separation procedure may apply.
ApplicantsTransgender with no history or diagnosis of gender dysphoriaMay serve in biological sex
With diagnosis or history of gender dysphoriaPresumptively disqualified unless stable for 18 months in preferred gender or biological sexPresumptively disqualified unless stable for 36 months and willing and able to serve in biological sex
With history of medical transition treatmentPresumptively disqualified

Enforcement

As of August 7, 2019, according to the Washington Blade , the United States Army, the United States Navy, the United States Air Force, the United States Marine Corps, and the United States Coast Guard have engaged in no discharges under Directive-type Memorandum-19-004. Also reported by the Washington Blade, the United States Army, the United States Navy, the United States Air Force, and the United States Marine Corps have engaged in no denial of enlistment to applicants under Directive-type Memorandum-19-004. [16]

United States Coast Guard

As of August 7, 2019, according to the Washington Blade , the United States Coast Guard reported denying enlistment to two applicants under Directive-type Memorandum-19-004. [16]

United States National Guard

The following state national guards are currently not enforcing the ban on transgender troops: California, Colorado, Massachusetts, Nevada, New Jersey, New Mexico, Oregon, and Washington. [17] [18] [19] [20]

United States Navy

Service Members may live socially in their preferred gender while off-duty. There is no policy that prohibits the ability of a Service Member to express themselves off-duty in their preferred gender. Appropriate civilian attire, as outlined in the uniform regulations, will not be determined based on gender. Regional commanders and the senior officers present may suspend or restrict the privilege of wearing preferred gender civilian attire to meet local conditions and host-nation agreements with foreign countries. [21]

United States Naval Academy

Starting in the fall of 2020, the United States Naval Academy will ban people who are transgender from attending the school. [22]

Retention bills

CongressBill numbersDate introducedSponsors# of cosponsorsLatest status
116th Congress H.R. 2500 May 2, 2019 Adam Smith 1House - 07/12/2019 The Clerk was authorized to correct section numbers, punctuation, and cross references, and to make other necessary technical and conforming corrections in the engrossment of H.R. 2500.
116th Congress H.R. 2740 May 15, 2019 Rosa L. DeLauro 0Senate - 07/10/2019 Read the second time. Placed on Senate Legislative Calendar under General Orders. Calendar No. 140.
116th Congress H.R. 1032 February 7, 2019 Jackie Speier 23House - 02/08/2019 Referred to the Subcommittee on Military Personnel.
116th Congress S. 373 February 7, 2019 Kirsten Gillibrand 12Senate - 02/07/2019 Read twice and referred to the Committee on Armed Services.

Lawsuits

There are currently four lawsuits challenging Directive-type Memorandum-19-004:

The decision by the United States Supreme Court to stay preliminary injunctions in the cases Karnoski v. Trump and Stockman v. Trump suggests the justices are likely to uphold the ban if they ever rule on the issue. [23]

H.Res. 124

On March 28, 2019, the United States House of Representatives passed, with 238 yeas, 185 nays, 1 present, and 8 not voting, H.Res. 124, a non-binding resolution expressing opposition to banning service in the Armed Forces by openly transgender individuals. [24]

Opinion polling

Date(s) conductedSupport banOppose banDon't know / NAMargin of errorSampleConducted byPolling type
May 15, 2019 – May 30, 201926%71%2%4%1,017 adults Gallup Telephone
April 9, 2019 – April 20, 201932%63%5%3.5%1,100 adults PRRI Landline and cellphone
January 25, 2019 – February 16, 201924%59%8%2%8,823 adults Reuters / Ipsos Online
January 25, 2019 – January 28, 201922%70%8%3.1%1,004 voters Quinnipiac University Poll Online
January 25, 2019 – January 26, 201941%59%3.7%1,000 registered voters The Hill / HarrisX Live interviewers call landlines and cell phones
January 22, 2019 – January 23, 201944%43%13%1,000 registered voters Rasmussen Reports Likely voters
March 25, 2018 – March 27, 201834% [25] 49% [25] 13% [25] 3.4%1,500 adults The Economist / YouGov Poll Web-based interviews
34% [26] 48% [26] 18% [26]
December 14, 2017 – December 17, 201723%73%5%3.6%1,001 adults CNN / ssrs Live interviewers call landlines and cell phones
August 2, 2017 – August 8, 201730%64%6%2.7%2,024 adults PRRI Landline and cellphone
July 27, 2017 – August 1, 201727%68%5%3.4%1,125 voters Quinnipiac University Poll Live interviewers call landlines and cell phones
July 27, 2017 – July 29, 201721%68%11%2%1,972 registered voters Morning Consult National Tracking Poll Online
July 26, 2017 – July 28, 201727%58%16%3.2%1,249 adults IPSOS / REUTERS POLL DATA Online
July 26, 2017 – January 27, 201744%45%11%3%1,000 registered voters Rasmussen Reports Likely voters

Reactions

Laverne Cox said, "This administration's ban on transgender service members will go into effect this Friday April 12, 2019. They have targeted trans people from the moment they took power." [27]

Kirsten Gillibrand blasted Trump for his discriminatory directive, saying, "A man [Donald Trump] who has never served has told men and women that their service is not worthy, based on their gender identity. I can't think of a more discriminatory, outrageous statement." [28] Another Democratic politician, Steve Bullock, the governor of Montana, announced he would allow transgender Americans to serve in the military. [29] Elizabeth Warren has pledged to overturn military transgender ban on the first day of her presidency. [30]

The American Medical Association told the Associated Press in April 2019 that the memorandum mischaracterized transgender people as having a "deficiency." [31]

On March 18, 2019, Democratic 2020 presidential candidate Cory Booker vowed to reverse Donald Trump's ban on transgender individuals serving in the military if elected. [32]

The military ban has widespread support among Republicans. The Republican National Committee has endorsed the trans ban from the military. [33] [34] Representative Ken Calvert of California has called for the exclusion of trans soldiers due to "deployability" problems. [35] Calvert stated, "Individuals with medical conditions that do not allow them to deploy, such as those identified in the policy, adversely impact military readiness and reduce the military’s warfighting capability."

Some of Trump's own supporters have expressed their opposition to Directive-type Memorandum-19-004, including Christopher R. Barron. [36] In addition, 56 retired generals and admirals signed on to a statement opposing the directive. [37]

During his 2020 presidential campaign, Mike Bloomberg pledged to reverse the ban on transgender individuals in the military. [38]

See also

Related Research Articles

Sex reassignment surgery (SRS), also known as gender reassignment surgery (GRS) and several other names, is a surgical procedure by which a transgender person's physical appearance and function of their existing sexual characteristics are altered to resemble those socially associated with their identified gender. It is part of a treatment for gender dysphoria in transgender people.

Sex reassignment therapy is the medical aspect of gender transitioning, that is, modifying one's characteristics to better suit one's gender identity. It can consist of hormone therapy to modify secondary sex characteristics, sex reassignment surgery to alter primary sex characteristics, and other procedures altering appearance, including permanent hair removal for trans women.

LGBT rights in the United States Rights of lesbian, gay, bisexual and transgender people in the US

Lesbian, gay, bisexual and transgender (LGBT) rights in the United States have evolved in recent decades. However, LGBT Americans may still face some legal and social challenges not experienced by non-LGBT residents, particularly in states with large conservative populations, such as in the "Bible Belt" in the Deep South and in much of the Midwest; in rural areas; and in some Native American tribal nations.

Transsexual People experiencing a gender identity inconsistent with their assigned sex

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Transgender rights in the United States vary considerably by jurisdiction as the Supreme Court of the United States (SCOTUS) has only once ruled directly on transgender rights, in 2020; regarding the applicability of Title VII of the Civil Rights Act 1964, in the case of R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, SCOTUS held that Title VII protections on sex discrimination in Employment extend to Transgender Employees.

Transgender people and military service

Not all armed forces have policies explicitly permitting LGBT personnel. Generally speaking, Western European militaries show a greater tendency toward inclusion of LGBT individuals. As of 12 April 2019, 19 countries allow transgender military personnel to serve openly: Australia, Austria, Belgium, Bolivia, Canada, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Ireland, Israel, Netherlands, New Zealand, Norway, Spain, Sweden, and the United Kingdom. Cuba and Thailand reportedly allowed transgender service in a limited capacity. In 1974, the Netherlands was the first country to allow transgender military personnel.

Women in the United States Army

There have been women in the United States Army since the Revolutionary War, and women continue to serve in it today. As of fiscal year 2014, women are approximately 14 percent of the active duty Army, 23 percent of the Army Reserve, and 16 percent of the Army National Guard.

Women in the United States Marines

There have been women in the United States Marines since 1918, and women continue to serve in it today. As of 2016, women make up 8% of all active enlisted Marines, and 7.5% of active Officers. These numbers give the Marine Corps the lowest ratio of women in all of the U.S military branches. Women's presence in the Marine Corps first emerged in 1918 when they were permitted to do administrative work in an attempt to fill the spots of male Marines fighting overseas. It was not until 1948 that women were able to become a permanent part of the Corps with the passing of the Women's Armed Services Integration Act. However, even with the Integration Act, women were still banned from certain military occupation specialties. It was not until 2016 that Defense Secretary Ash Carter announced that all military occupations would be open to women without exception. As of 2018, there were 18 women serving in the Marine Corps combat arms.

Women in the United States Air Force

There have been women in the United States Air Force since 1948, and women continue to serve in it today.

This article addresses the legal and regulatory history of transgender and transsexual people in the United States including case law and governmental regulatory action affecting their legal status and privileges, at the federal, state, municipal, and local level, and including military justice as well.

Transgender personnel in the United States military

Because of the 2020 version of DoD Instruction 1300.28 transgender personnel in the United States military are denied equal opportunity to serve or enlist in the United States military, except if they serve in their original sex assignment, had been grandfathered in prior to April 12, 2019, or were given a waiver. This Memorandum, originally scheduled to expire on March 12, 2020, was extended until September 12, 2020. Before it expired, it was replaced by a reissued version of DoD Instruction 1300.28, “Military Service by Transgender Persons and Persons with Gender Dysphoria," which took effect on September 4, 2020.

<i>Stone v. Trump</i>

Stone v. Trump (1:17-cv-02459-MJG) is a lawsuit filed on August 28, 2017 in the United States District Court for the District of Maryland. The lawsuit alleges that President Donald Trump's ban on transgender personnel joining the U.S. military violates their equal protection and due process rights. The American Civil Liberties Union (ACLU) of Maryland filed the suit on behalf of Petty Officer First Class Brock Stone, an 11-year veteran of the U.S. Navy, and several other transgender service members. In addition to President Trump, the suit names as defendants the Secretaries of Defense, the Army, the Navy, and the Air Force.

Presidential Memorandum on Military Service by Transgender Individuals (2017)

The Presidential Memorandum on Military Service by Transgender Individuals, officially the Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security is the 27th presidential memorandum signed by U.S. President Donald Trump on August 25, 2017. The intent was to prevent transgender people from serving in the U.S. military. Federal courts delayed the implementation of this rule by issuing four injunctions. On January 22, 2019, however, the U.S. Supreme Court allowed the Trump administration's ban to take effect.

Sexual orientation and gender identity in the United States military LGBT in the US military

In the past most lesbian, gay, bisexual, transgender, and queer (LGBTQ) personnel had major restrictions placed on them in terms of service in the United States military. As of 2010 sexual orientation and gender identity in the United States military varies greatly as the United States Armed Forces have become increasingly openly diverse in the regards of LGBTQ people and acceptance towards them.

<i>Doe v. Trump</i> (2017)

Jane Doe v. Trump (1:17-cv-01597-CKK) was a lawsuit filed on August 9, 2017 and decided January 4, 2019 in the United States District Court for the District of Columbia. The suit sought to block Donald Trump and top Pentagon officials from implementing the proposed ban on military service for transgender people under the auspices of the equal protection and due process clauses of the Fifth Amendment. The court ruled that the Trump administration's policy should not be blocked. Nonetheless, the Trump administration's policy continued to be blocked due to three preliminary injunctions against it that were not part of this lawsuit and which remained in effect as of the lawsuit's conclusion on January 4, 2019.

<i>Stockman v. Trump</i>

Stockman v. Trump (5:17-cv-01799-JGB-KKx) is an old lawsuit filed on September 5, 2017, in the United States District Court for the Central District of California. The suit, like the similar prior suits Jane Doe v. Trump, Stone v. Trump, and Karnoski v. Trump, seeks to block Trump and top Pentagon officials from implementing the proposed ban on military service for transgender people under the auspices of the equal protection and due process clauses of the Fifth Amendment. The suit was filed on the behalf of four named and three anonymous transgender plaintiffs by Equality California (EQCA). Two other major LGBT-rights organizations which had filed Jane Doe v. Trump, GLBTQ Legal Advocates & Defenders (GLAD) and the National Center for Lesbian Rights, joined the suit as co-counsels in October 2017.

<i>Karnoski v. Trump</i>

Karnoski v. Trump (2:17-cv-01297-MJP) is a lawsuit filed on August 29, 2017 in the United States District Court for the Western District of Washington. The suit, like the similar suits Jane Doe v. Trump, Stone v. Trump, and Stockman v. Trump, seeks to block Trump and top Pentagon officials from implementing the proposed ban on military service for transgender people under the auspices of the equal protection and due process clauses of the Fifth Amendment. The suit was filed on the behalf of three transgender plaintiffs, the Human Rights Campaign, and the Gender Justice League by Lambda Legal and OutServe-SLDN.

The Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security Regarding Military Service by Transgender Individuals is the 43rd presidential memorandum signed by U.S. President Donald Trump on March 23, 2018.

Intersex people in the United States military

The regulations regarding the service of intersex people in the United States Armed Forces are vague and inconsistent due to the broad nature of humans with intersex conditions. The United States Armed Forces as a whole does not officially ban intersex people from service but does exclude many based on the form of their status. Policies regarding all intersex people are not addressed formally although depending on the type of sex variation some intersex people are allowed to serve.

The transgender military ban in the United States under President Donald Trump has taken several forms. This is a list of articles covering the subject.

References

  1. 1 2 SDGLN, Timothy Rawles-Community Editor for (April 12, 2019). "Trans folks are now banned from serving in the U.S. military forces". San Diego Gay and Lesbian News.
  2. ↑ Kime, Patricia (March 13, 2019). "The 9,000 Transgender Troops in Uniform Will Continue to Serve, Officials Say". Military.com.
  3. ↑ "DTM DRAFT-151 MILITARY SERVICE BY TRANSGENDER PERSONS AND PERSONS WITH GENDER DYSPHORIA OSD002299-19 RES Final.pdf". Google Docs.
  4. ↑ "Directive-type Memorandum (DTM)-19-004 - Military Service by Transgender Persons and Persons with Gender Dysphoria March 17, 2020" (PDF).
  5. ↑ Office of the Under Secretary of Defense for Personnel and Readiness (4 September 2020). "DoD Instruction 1300.28: Military Service by Transgender Persons and Persons with Gender Dysphoria" (PDF). www.esd.whs.mil. Retrieved 7 September 2020.
  6. ↑ Hartzler, Vicky (July 13, 2017). "H.Amdt.183 to H.R.2810 - 115th Congress (2017-2018)". www.congress.gov.
  7. ↑ Stark, Liz. "Hartzler: Transgender service members 'costly' to military". CNN.
  8. 1 2 Bade, Rachael; Dawsey, Josh. "Inside Trump's snap decision to ban transgender troops". POLITICO.
  9. ↑ Trump bans transgender individuals from U.S. military service
  10. ↑ Note, Recent Social Media Posts: In Tweets, President Purports to Ban Transgender Servicemembers , 131 Harv. L. Rev. 934 (2018).
  11. ↑ Here’s how Trump responded to a question about women and transgender individuals in the military
  12. ↑ https://dod.defense.gov/Portals/1/features/2016/0616_policy/DoD-Instruction-1300.28.pdf
  13. 1 2 3 "DTM DRAFT-151 MILITARY SERVICE BY TRANSGENDER PERSONS AND PERSONS WITH GENDER DYSPHORIA OSD002299-19 RES Final.pdf". Google Docs.
  14. ↑ Year after trans military ban, legal battle rages on
  15. ↑ US Navy grants first waiver for transgender service member to serve under their preferred gender
  16. 1 2 Military reports no discharges under trans ban — but advocates have doubts
  17. ↑ "4 state National Guards have joined California in defying Trump's transgender military ban". Task & Purpose. April 24, 2019.
  18. ↑ Politics, Ernest Luning, Colorado. "Polis: Colorado National Guard won't enforce Trump's ban on transgender troops". Colorado Politics.
  19. ↑ Jersey, Out In (May 5, 2019). "NJ Army National Guard will defy Trump's ban on trans military service members".
  20. ↑ Transgender troops welcome in Massachusetts National Guard, state official says
  21. ↑ "NAVADMIN 070/19".
  22. ↑ "Naval Academy to ban transgender students starting in fall 2020". www.cbsnews.com.
  23. ↑ Savage, David G. "Under Roberts, Supreme Court wades into transgender debate, avoids other tough issues". latimes.com.
  24. ↑ H.Res. 124: Expressing opposition to banning service in the Armed Forces by openly transgender individuals.
  25. 1 2 3 Do you favor or oppose allowing transgender people to serve openly in the military?
  26. 1 2 3 Do you approve or disapprove of Donald Trump issuing a ban on transgender people serving in the military?
  27. ↑ https://twitter.com/Lavernecox/status/1116105256038010880
  28. ↑ https://www.cbsnews.com/news/2020-presidential-candidates-views-on-transgender-issues-as-trump-administration-rolls-back-lgbtq-safeguards/
  29. ↑ https://www.washingtontimes.com/news/2019/oct/31/elizabeth-warren-plan-would-ban-big-firms-from-imm/
  30. ↑ https://www.msn.com/en-us/news/politics/warren-pledges-to-overturn-military-transgender-ban-on-day-1/ar-AAJT1Fp
  31. ↑ "Health". ABC News.
  32. ↑ "Booker pledges to undo Trump's 'un-American' trans military ban". NBC News.
  33. ↑ "Republican National Committee endorses ban on transgender military service".
  34. ↑ Johnson, Chris. "RNC Approves Resolution Backing Trump's Transgender Military Ban".
  35. ↑ Kelley, Patrick; Kelley, Patrick (June 19, 2019). "Trump's military transgender ban blocked in House spending bill" – via www.rollcall.com.
  36. ↑ "People May Hate Roger Stone, But He's An LGBT Ally". BuzzFeed News.
  37. ↑ Kheel, Rebecca (August 1, 2017). "56 retired generals, admirals warn against Trump's transgender ban". TheHill.
  38. ↑ https://www.mikebloomberg.com/policies/lgbtq
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