Department of Defense Uses 'Categories' of Transgender People to Defend Ban

The Department of Defense considers Tuesday’s ruling a success, despite the fact that the ban cannot yet be implemented—of the four injunctions that have prevented the ban, only one is still in place. In a boilerplate statement sent to media outlets on Tuesday, Lt. Col. Carla M. Gleason, a spokesperson for the Department of Defense, stated, “The Department is pleased with the orders issued by the Supreme Court today.”

Lt. Col. Gleason’s statement claimed that this policy does not ban transgender people from military service. When asked to clarify how their proposed policy is different from a trans ban, Lt. Col. Gleason wrote, “It outlines the service conditions for transgender individuals,” and attached the 2018 policy signed by then–Secretary of Defense General Jim Mattis.

The policy states: “Transgender persons who require or have undergone gender transition are disqualified from military service,” and advises that only trans people who have been living as their birth sex for at least 36 months or those who are simply not going to transition should be qualified to be in the military. Transgender people living in a gender other than their birth sex wouldn’t be eligible to join the service. The Trump administration’s policy further states that the only trans people allowed to serve as their true gender and receive medical treatment for gender dysphoria are those who are already enlisted and have been “diagnosed with gender dysphoria since the [Obama] administration’s policy took effect and prior to the effective date of this new policy.”

Lt. Col. Gleason cited numbers from a 2016 RAND study, which estimated the population of trans service members at the time to be between 1,320 and 4,600, with a “midrange estimate of 2,430.” RAND’s study also found that “only a subset will seek gender transition–related treatment,” suggesting that only 29 to 129 trans people in the military would seek to transition each year.

RAND’s study was constructed prior to the implementation of the Obama administration’s policy under Defense Secretary Ash Carter, which was announced in 2016 and went into effect in 2017. This policy allowed transgender people to serve openly in the US military and to receive medical treatment for their gender dysphoria. The RAND findings did not state how many service members needed to transition, just how many service members at that time would seek transgender medical care.

Referencing these numbers, the DoD stated that the policy does not ban trans people, because, as Lt. Col. Gleason claimed, only a minority of trans people require medical treatment for gender dysphoria: “[It isn’t a ban] because thousands of people identify as transgender, while hundreds have gender dysphoria, and even fewer transition. Each of those categories is handled differently within the policy,” Gleason wrote.

The DoD is, apparently, drawing the RAND estimation out across the transgender population as a whole. Broadly requested clarification, asking, “Is the DoD suggesting that, in general, most transgender people do not need to transition? If so, what is that based on?”

The DoD did not answer that, but replied with a version of the same question, asking, “Is it your position, in general, that most transgender [sic] require transition? If so what is that based on?”

According to leading research in this area, most transgender people do require transition. The 2015 US Transgender Survey conducted by the National Center for Transgender Equality (NCTE), the largest study of its kind, found that “a large majority of transgender men and women (95 percent) have wanted hormone therapy,” the survey states.

Hormone replacement therapy is a core treatment method for transgender people, acknowledged by leading medical organizations concerned with transgender health. Such treatment, which data shows nearly all trans men and women would like access to, is explicitly banned under the DoD’s proposed transgender policy. In 2017, the American Medical Association released a public statement explaining that, “There is no medically valid reason to exclude transgender individuals from military service.”

However, left untreated, gender dysphoria can have negative impacts on a trans person’s health, which could be relevant to military readiness. The Department of Defense knows this; according to the DoD’s own proposed policy around transgender people in military service, “Persons diagnosed with gender dysphoria often seek to transition their gender through prescribed medical treatments intended to relieve the distress and impaired functioning associated with their diagnosis.” At the same time, the policy denies health care that would reduce or eliminate these issues. The DoD admitted this in their own policy, stating that the Department “finds that exempting such persons from well-established mental health, physical health, and sex-based standards… could undermine readiness, disrupt unit cohesion, and impose an unreasonable burden on the military that is not conducive to military effectiveness and lethality.”

Zeke Stokes, Vice President of Programs at GLAAD Media, said that “the response from the Pentagon either represents a willful misinterpretation of the facts, or they simply don't understand what it means to be transgender.”

Stokes highlighted that the Rand numbers were generated during a time of suppression of trans identity within the military, which, he says, makes it difficult to assume that the number of service members seeking treatment at that time is relative to the number who actually require it. “It's hard to depend on numbers from a time when service members were putting their careers at risk in order to share any information about their identity,” Stokes said.

Other politicians and leading organizations for transgender rights weighed in on the DoD’s claims to Broadly that the policy is not a ban. Congressman Joe Kennedy III of Massachusetts, the leader of the congressional Transgender Equality Task Force, disputed the DoD’s defenses of the policy. “Make no mistake: The President’s proposal is a ban on transgender Americans that targets every single transgender person in our Armed Forces,” Kennedy said. “If successful, transgender service members will be forced to pick between their identity and their job. Forcing these servicemembers to forfeit who they are in order to serve under a policy that stigmatizes them and their service is disgraceful.”

Sarah McBride, the national press secretary for the Human Rights Campaign, said, “Banning transgender people who have transitioned or plan on transitioning from serving is a ban. Banning people from enlisting unless they commit to serving as their sex assigned at birth is a ban. This policy demonstrates a willful ignorance of who transgender people are and a total disregard for the overwhelming medical consensus on gender identity. The Trump-Pence administration’s ban is cruel and discriminatory, full stop.”

Chase Strangio, a staff lawyer for the ACLU, is one of the nation’s most outspoken figures in the legislative progress for transgender civil rights. Of the DoD’s position, Strangio stated, “This is a dangerous distortion attempting to mask the anti-trans discrimination that has been a defining characteristic of this administration."

Strangio believes there isn’t any data to support the DoD position. “The suggestion that this is not a trans ban because it allows people to serve in their assigned sex at birth, provided they have no distress and have never taken steps to transition, is a farce.

“A person who experiences no harms from being forced to live in their assigned sex at birth is not trans,” Strangio said. “This amounts to gaslighting trans existence and supporting a governmental policy of coerced rejection of what defines us as trans. It reflects only discrimination—not data, not science, not military justification.”

Despite multiple requests for comment, the DoD refused to further clarify or comment and continued to request Broadly’s position on the issue.

Leila Ettachfini contributed research to this story.