Even with the repeal of “Don’t Ask, Don’t Tell,” a federal law prohibiting gay, lesbian, and bisexual people from serving in the military, transgender individuals remain banned from service because of policies devised within the armed services. The Defense Department recently made some policy revisions that conceivably should allow trans people to serve openly, but the individual branches have not yet followed suit. The ban essentially persists only because of red tape.
The Palm Center, a think tank dedicated to issues affecting the LGBT community in the military, argues in a new report that the Army, Air Force, and Navy/Marines are in violation of the Department of Defense’s (DOD) new rules on transgender personnel. This inconsistency shines new light on how the ban is not only arbitrary, but based on decades-old medical standards that categorize transgender people as sexually disordered.
The DOD previously had two rules banning trans service: a standard for enlisting, and a standard for retention. The enlistment standard prevented anybody from joining the military who had a “history of major abnormalities or defects of the genitalia including but not limited to change of sex.” Transgender identities were then also classified among “congenital or developmental defects,” conditions “not constituting a physical disability” that required immediate dismissal without medical treatment or any opportunity to demonstrate fitness for duty. Thus, a person who is already transgender could be prevented from enlisting, and a person who later comes out as transgender could be kicked out.
In August, however, the Pentagon eliminated the list of medical and administrative conditions that immediately disqualify service members from continuing to serve. Under the new policy, conditions must be evaluated to determine whether they prevent reasonable performance of duty, present obvious medical risks to the individual or to others, or impose unreasonable requirements on the military. Though the services may continue to administratively disqualify “congenital or developmental defects,” the conditions must actually be “defects” and must actually “interfere with assignment to or performance of duty.” Being transgender qualifies as neither, most notably in that such an identity is no longer classified as a mental disorder by the American Psychiatric Association (APA).
The only obstacle blocking transgender service then is the fact that the individual branches have not updated their policies to match the DOD’s. The Palm Center report notes that by maintaining categorical prohibitions, the services are enforcing regulations that “are too sweeping” because they do not distinguish conditions that impair fitness for assignment or duty from those — like being trans — that don’t. In other words, transgender identities remain a disqualification for purely tautological reasons.
There’s also a concern that the branches could update their policies to use the APA’s new language — “gender dysphoria,” as opposed to “gender identity disorder” — without reevaluating whether it should be grounds for dismissal. That’s just what the Army National Guard and Army Reserves did earlier this year. Despite using the correct language that no longer identities being transgender as a disorder, those services still describe “gender dysphoria” as a “disorder manifesting disturbances of perception, thinking, emotional control or behavior” that impairs a service member’s ability to “perform military duties effectively.”
Even if the services aligned their retention policies with the DOD’s, one hurdle would remain: the enlistment policy. People who are transgender would still be prohibited from joining the military and any evidence that they had begun a transition process would disqualify them. But, anybody who successfully enlists and then comes out as trans would then be allowed to stay because the retention policy would no longer force them out. The lingering status quo would be that trans people could be in the military; they just couldn’t join the military. Estimates suggest that as many as 15,500 transgender people are already serving in the armed services, and the end of the retention policy would allow them to come out and obtain the medical care they deserve.
Departing Defense Secretary Chuck Hagel said in May that he believed the military’s ban should on transgender service should be reviewed, but it’s not clear that such review has yet taken place. The August policy change did not specifically reference gender identity whatsoever, but did clear the way for the ban to no longer exist.