By HELENE COOPER and THOMAS GIBBONS-NEFF
WASHINGTON – Transgender troops who are in the U.S. military may remain in the ranks, the White House said late Friday, but the Pentagon could require them to serve according to their gender at birth.
The policy directive that President Donald Trump signed flatly stated that “transgender persons who require or have undergone gender transition are disqualified from military service.” But it also largely gives the Pentagon the ability to make exceptions where it sees fit.
The policy adopts recommendations that Trump received last month from Defense Secretary Jim Mattis. It comes after court rulings froze the president’s initial ban on transgender troops – issued in July – as potentially unconstitutional.
“In my professional judgment, these policies will place the Department of Defense in the strongest position to protect the American people, to fight and win America’s wars, and to ensure the survival and success of our service members around the world,” Mattis wrote in a summary of his recommendations to the president.
The policy announcement outraged advocates for transgender troops, and the advocates vowed to fight the limits in court.
“There is no evidence to support a policy that bars from military service patriotic Americans who are medically fit and able to deploy,” said Aaron Belkin, the director of the Palm Center, which focuses on sexuality and the military. “Our troops and our nation deserve better.”
In a series of Twitter posts in July, Trump announced that “the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military.”
He said he decided to issue the ban after consulting generals and military experts, although Mattis was given only a day’s notice. In August, Trump directed the Pentagon reverse an Obama administration policy that had allowed transgender people – or those diagnosed with gender dysphoria, or had discomfort with their biological gender – to serve in the military.
In October, a judge in the U.S. District Court for the District of Columbia temporarily blocked Trump’s ban and said the reasoning behind it was most likely unconstitutional because it represented a “disapproval of transgender people generally.” Judge Colleen Kollar-Kotelly had ruled that the military’s current policy should remain in place.
Trump’s new order allows the defense secretary and the homeland security secretary to “exercise their authority to implement any appropriate policies concerning military service by transgender individuals.”
In a memo to the president, dated Feb. 22, Mattis cited “substantial risks” about military personnel who seek to change or who question their gender identity.
He said that allowing some of them to serve would amount to an exemption of certain mental, physical and sex-based standards and “could undermine readiness, disrupt unit cohesion, and impose an unreasonable burden on the military that is not conducive to military effectiveness and lethality.”
Mattis’ assertion contradicts a 2016 study by the RAND Corp., which found that allowing transgender people to serve in the military would “have minimal impact on readiness and health care costs” for the Pentagon.
The study estimated that health care costs would rise $2.4 million to $8.4 million a year, representing an infinitesimal 0.04 to 0.13 percent increase in spending. It concluded that there were 2,000 to 11,000 active-duty troops who were transgender.
Citing research into other countries that allow transgender people to serve, the study projected “little or no impact on unit cohesion, operational effectiveness or readiness” in the United States.
Mattis, in his recommendation to Trump, complained that the RAND study “heavily caveated data to support its conclusions, glossed over the impacts of health care costs, readiness and unit cohesion, and erroneously relied on the selective experiences of foreign militaries with different operational requirements than our own.”
“In short,” Mattis concluded, “this policy issue has proven more complex than the prior administration or RAND assumed.”
In her ruling last October, Kollar-Kotelly rejected the Trump administration’s argument that it needed more time to prepare to process transgender recruits for military service. “The court is not persuaded that defendants will be irreparably injured by allowing the accession of transgender individuals into the military beginning on Jan. 1, 2018,” she wrote.
On Friday, Pentagon officials said they would continue to comply with federal law. A Defense Department spokesman said the Pentagon would “continue to assess and retain transgender service members.” The new policy must first be published in the Federal Register, which generally requires new rules to be reviewed and subject to a public comment period before they are enacted.
Trump announced the ban in July to resolve a quietly brewing fight on Capitol Hill over whether taxpayer money should pay for gender transition and hormone therapy for transgender service members.
But rather than addressing that narrow issue, Trump opted to upend the entire policy on transgender service members. His decision was announced with such haste that the White House could not answer basic questions about how it would be carried out, including what would happen to transgender people on active duty.
Now, eight months later, what will happen to transgender people on active duty is still unclear.
“What the White House has released tonight is transphobia masquerading as policy,” Joshua Block, a senior staff lawyer at the American Civil Liberties Union LGBT and HIV Project, said in a statement.
The new policy, according to the ACLU memo, “effectively coerces transgender people who wish to serve into choosing between their humanity and their country, and makes it clear that transgender service members are not welcome.”