Openly transgender individuals are now able to enlist in the U.S. military, after the Justice Department on Friday made clear that its proposed ban on such recruits was on hold and that it would not appeal federal court rulings ordering the military to begin the enlistments.
“It's a victory for trans people, and it's a victory for the military," said Joshua Block, a senior staff attorney with the American Civil Liberties Union, which has been fighting the ban in court. "There is no reason whatsoever why people who can meet the rigid and very strict standards for enlistment should be barred from doing so simply because they are transgender."
Friday’s announcement came as a welcome relief for Nicolas Talbott, a 24-year-old transgender recruit from Lisbon, Ohio, who has been planning to join the Air Force for nearly two years.
“All I’m waiting for now is a phone call back from my recruiter,” he told NBC News, adding that the past few months have been “an absolute roller coaster” for him.
Transgender people have been able to serve openly since June 2016, but this month is the first time they can be open about their gender identity in the enlistment process. Despite this, however, the future of transgender people in the military remains uncertain.
Birth of the trans ban
In a series of unexpected early morning tweets in July, President Donald Trump tried to reverse U.S. policy by announcing that the military would “not accept or allow” transgender people to serve “in any capacity.” The tweets left the nation in shock and thousands of currently serving transgender people in the dark. Trump's social media posts also set off months of lawsuits and court cases, which resulted in 10 federal judges blocking his attempted ban.
Trump's proposal went against the military’s own recommendations regarding transgender service members, which were arrived at as part of policy review that began in 2015 by the secretary of Defense at the time, Ashton Carter. Under Carter, a Pentagon-commissioned study concluded that there were no reasons to exclude trans individuals from military service. The Obama administration then lifted the ban on transgender people serving in the military, permitting those already in the armed forces to be open about their gender identities and setting a date to allow the recruitment of openly transgender individuals.
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After Trump's unexpected July tweets, several legal organizations filed lawsuits to prevent the ban from going into effect. On Dec. 21, in a case brought by the ACLU, the U.S. Court of Appeals for the 4th Circuit denied the Trump administration's request to delay the Jan. 1 enlistment date (which had already been delayed from July 1). Then on Dec. 22, in another suit filed by GLAD (GLBTQ Legal Advocates & Defenders) and the National Council for Lesbian Rights, the U.S. Court of Appeals for the D.C. Circuit ruled the same way.
On Friday, just ahead of the Jan. 1 deadline, a Justice Department official said the administration would not challenge the rulings, but wait until an independent study by the Pentagon "of these issues" was released. In the meantime, the administration "will continue to defend the president’s lawful authority in District Court,” the official said, speaking on condition of anonymity.
Matt Thorn, executive director of the LGBTQ military organization OutServe-SLDN, called it a “huge win” for transgender service members.
“Had this administration actually taken a look at this before the president decided to tweet randomly, they would have come to the same conclusion that the DOD did a year ago,” he added.
Finding legal success
Block said the fact that four district court judges and six appeals judges sided with the plaintiffs was indicative of “a unanimity of opinion that what the president did was just so far beyond the bounds of reasoned decision making, it certainly laid bare that there was no good reason for trying to push the start date back.”
Thorn echoed Block in regards to the importance of all the courts being "in sync" on their decisions regarding Trump's proposed ban. "They all came to the same conclusion," Thorn said. "You didn’t have a split in the circuit. That’s the only way the Supreme Court would have considered hearing the case."
Thorn said the legal arguments of those fighting the ban were compelling to appeals and circuit judges not only because the ban is unconstitutional under the equal protection clause, but because high-ranking members of the military have publicly criticized the ban.
He said while courts tend to give latitude to the government in issues pertaining to defense and national security, “military deference flew out the window” after having “active duty [transgender] service members who are still working on the front lines” in conjunction with statements from people like former Joint Chiefs Chairman Admiral Mike Mullen, who had worked on the policy regarding transgender people serving openly in the military.
All future cases related to a proposed transgender military ban, according to Block, will now move forward with a "discovery process," which means the government must substantiate Trump’s claim that trans service members pose an undue burden on the military. Block said the government is unlikely to be successful in doing this, since the Pentagon’s own 2015 study demonstrated the opposite.
“The military is allegedly supposed to give its recommendations to President Trump in February," Block explained. "It’s entirely possible that they would just announce in February that they recommended that President Trump rescind the ban and he accept the recommendation, but that's all in their hands.”
“At the end of the day, the military told Trump not to issue this ban. They warned him, and he did it anyway," Block added. "Who knows if the president is going to take their recommendations or not.”
Thorn said he is “cautiously optimistic” about litigation in 2018. “We have proven we can go to court and we can win.”
The longer the Defense Department allows trans service members and trans recruits, "the harder it is to put that genie back in the bottle," Thorn added. “This country has now seen trans individuals serving the armed forces.”
Like Thorn, Talbott said he, too, is “optimistic.”
“I really think we’ve come so far already that we are going to go all the way with this,” he said. “I confidently believe that we are going to get this ban lifted once and for all and that transgender people are going to serve in the U.S. military and not have to worry about this ever again.”