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Trump’s transgender military service ban is based in ‘prejudice and bigotry’

Capt. Jennifer Peace on being a transgender military service member

Capt. Jennifer Peace is one of an estimated 15,000 transgender people who serve in the active-duty military. She's speaking out in the hopes of helping people understand transgender men and women.
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Capt. Jennifer Peace is one of an estimated 15,000 transgender people who serve in the active-duty military. She's speaking out in the hopes of helping people understand transgender men and women.

On April 12, 2019, President Donald Trump’s policy barring military service by most transgender individuals went into effect. There is no basis for this policy except prejudice and bigotry.

President Barack Obama commissioned a study of the ban on transgender individuals serving in the military, led by former Surgeon General Jocelyn Elders and retired Rear Adm. Alan Steinman. The panel concluded that the ban was “an expensive, damaging and unfair barrier to health care access for the estimated 15,450 transgender personnel who (were serving) in the active, Guard and reserve components.”

A 2016 study by the Rand Corporation, commissioned by the Defense Department, concluded that allowing transgender individuals to serve in the military would have “minimal impact on readiness and health care costs.” The study estimated that there are between 2,000 and 11,000 transgender individuals in military service.

The Rand Study found that by allowing trans-inclusive medical care, “active-component health care costs would increase by between $2.4 million and $8.4 million annually, representing a 0.04 to 0.13 percent increase in active-component health care expenditures.”

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By comparison, the Military Times reported that the Pentagon’s 2014 budget for the purchase of erectile dysfunction drugs such as Viagra was $84 million.

The RAND study looked at nearly 20 countries that allow openly transgender personnel to serve in their militaries. The study concluded that “in no case was there any evidence of an effect on the operational effectiveness, operational readiness, or cohesion of the force.”

The Rand Corporation study made clear that there is no reason for excluding transgender individuals from military service. In light of these studies and with the advice of military leaders, the Obama administration adopted a policy permitting transgender individuals to serve in the military. The policy was implemented without any reported problems.

Nonetheless, President Trump – in a tweet – announced in 2017 that he was reversing this policy and would prohibit transgender individuals from serving in the military. Following a Pentagon review, the White House announced a new policy which declares that “transgender persons with a history or diagnosis of gender dysphoria – individuals who the policies state may require substantial medical treatment, including medications and surgery – are disqualified from military service except under certain limited circumstances.”

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Erwin Chemerinsky

When President Trump announced that he was going to ban transgender individuals from serving in the military, the chairman of the Joint Chiefs of Staff, Joseph Dunford, disagreed and said that he “believe[s] that any individual who meets the physical and mental standards ... should be afforded the opportunity to continue to serve.”

Dunford had earlier testified that transgender individuals had served without incident or significant cost to the military. Similarly, a letter signed by 56 retired generals and admirals stated that, if implemented, the ban “would cause significant disruptions, deprive the military of mission-critical talent, and compromise the integrity of transgender troops who would be forced to live a lie, as well as nontransgender peers who would be forced to choose between reporting their comrades or disobeying policy.”

Three federal district courts issued preliminary injunctions to keep the Trump transgender military ban from going into effect. All concluded that it violated equal protection as unjustified discrimination against transgender individuals.

The Trump administration asked the Supreme Court to take the cases before review in the United States Courts of Appeals. The Supreme Court declined to do this, but on Jan. 22, stayed the preliminary injunctions so that the ban on military service by transgender individuals can go into effect immediately while the cases are being heard in the Courts of Appeals.

Justices Ginsburg, Breyer, Sotomayor and Kagan dissented from the Court’s action, though none of the justices on either side wrote opinions.

In March 2019, the Pentagon released a directive to prohibit service members who appear transgender or act transgender by failing to meet grooming, uniform and other military standards for their birth sex. It also bans people from enlisting in the armed forces if they have transitioned from their “biological sex” to another gender. President Trump’s directive prevents the military from recruiting transgender individuals and providing necessary medical treatment to those currently serving. On April 12, it went into effect.

Irrational prejudice is the only basis for Trump’s transgender ban. Hopefully, the federal Courts of Appeals and the Supreme Court will strike it down.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.

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