Navy grants waiver allowing transgender sailor to serve openly

The service member, known only as Jane Doe, will be permitted to serve in accordance with her gender identity, as opposed to her sex assigned at birth.
Image: US Navy
Members of the United States Navy participate in a re-enlistment and promotions ceremony at the Sept. 11 Memorial on May 24, 2019, in New York City.Spencer Platt / Getty Images file
By Nico Lang

For the first time, the U.S. Navy has granted a waiver to allow a transgender sailor to continue her military service despite the president’s ban on transgender people serving openly in the armed forces.

Attorneys for the sailor and a spokesperson for Navy Secretary James E. McPherson confirmed earlier this week that senior government officials had approved the waiver. Navy spokesperson Lt. Brittany Stephens said the sailor, known only as "Jane Doe" in media reports and court documents, “requested a waiver to serve in their preferred gender” and will be “allowed to adhere to standards associated with their preferred gender, such as uniforms and grooming,” according to CNN, which was the first to report on the waiver.

SPART*A, an organization that advocates for transgender service members, said in a statement that the organization is “ecstatic” about the Navy’s announcement, hoping it could pave the way for more transgender people to serve openly in the armed forces.

“I am hopeful that this is the first of many,” said SPART*A President Emma Shinn, “but the fight is far from over.”

It has been a long fight for advocacy groups to reach even this milestone. Jane Doe's request has been the only one of its kind granted since President Donald Trump announced in July 2017 that he intended to prohibit transgender troops from serving openly in the military, reversing a year-old policy from the prior administration. Although the ban was initially blocked in a series of federal court rulings, the Supreme Court eventually lifted those injunctions.

Guidelines unveiled in March 2018 permitted transgender people to remain in active duty if they served in accordance with their “biological sex” or received a diagnosis of gender dysphoria from a medical professional before April 2019, when the ban officially went into effect. An estimated 1,000 trans troops received a diagnosis before the deadline and were allowed to continue serving in accordance with their gender identity.

Active duty service members who missed the April cutoff could apply for a waiver to serve in accordance with their gender identity, and reports from the Department of Defense suggest that over 8,000 troops could be eligible for that waiver.

Critics have alleged, however, that the application process is not transparent and the guidelines to have requests granted are unclear. Jennifer Levi, transgender rights project director for GLBTQ Legal Advocates and Defenders and one of Jane Doe's attorneys, noted in a statement that dozens of other “equally qualified transgender service members … have sought waivers and are still in limbo, despite being perfectly fit to serve.”

Levi said the Navy only granted the waiver after Jane Doe, a naval officer who came out two months after the military ban went into effect, filed a lawsuit in a Massachusetts federal court in March: Doe v. Esper. While the five other legal challenges brought as a result of Trump’s military ban sought to overturn the policy, Jane Doe was merely seeking to continue her service. She has been a member of the Navy since 2011.

“Dedicated military service members shouldn’t have to bring a lawsuit to be able to continue doing their job,” Levi said.

While LGBTQ advocacy groups remain optimistic that this first step could lead to positive developments in the push to reverse Trump’s ban on transgender people serving openly, some felt the move could be an attempt by the White House to neutralize legal arguments against the policy.

Peter Perkowski, legal and policy director for the Modern Military Association of America, a nonprofit that advocates for LGBTQ military service members and veterans, argued the Trump administration “may attempt to weaponize the decision by falsely claiming the ban isn't a ban.”

“MMAA is committed to ensuring the unconscionable … transgender military ban is overturned and any qualified transgender patriot is free to serve openly and authentically,” Perkowski said in a statement.

Shannon Minter, legal director of the National Center for Lesbian Rights and an attorney for Jane Doe, said the plaintiff’s ultimate success in having her waiver approved doesn’t change the fact that the policy discriminates against trans people who hope to serve in accordance with their gender identity. NCLR is one of several LGBTQ advocacy groups that has fought against the trans military ban in court, along with Lambda Legal, GLAD and MMAA.

“There is no basis for treating transgender service members differently by requiring them to seek a waiver that no one else has to obtain in order to continue to serve,” Minter said in a statement.

A 2016 study commissioned by the Department of Defense concluded that allowing trans people to serve openly and in accordance with their gender identity would have “minimal impact on readiness and health care costs,” noting the number of transgender service members “would likely be a small fraction of the total force.”

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