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Department of Defense Instruction 1300.28

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Directive-type Memorandum-19-004 is an anti-trans memorandum, signed by the David L. Norquist, who is performing the duties of United States Deputy Secretary of Defense, on March 12, 2019. The DTM bans most transgender individuals from serving or enlisting, applies to all organizational entities United States Department of Defense, and is set to take effect on April 12, 2019 and set to expire on March 12, 2020.[1]

This memorandum requires post-operative applicants to detransition to their initial sex ("biological sex"). Post-operative applicants must live in their previous gender for 36 months.

Provisions

  • Describes transgender military service as "special accommodations"
  • No person, solely on the basis of his or her gender identity, will be denied accession, involuntarily separated or discharged, denied reenlistment or continuation of service, or subjected to adverse action or mistreatment within the United States military
  • Transgender service members or applicants for accession to the United States military are subject to the same standards as cisgendered people
  • When a standard, requirement, or policy depends on whether the individual is a male or a female ( e.g., medical fitness for duty; physical fitness and body fat standards; berthing, bathroom, and shower facilities; and uniform and grooming standards), all persons will be subject to the standard, requirement, or policy associated with their biological sex
  • A history or diagnosis of gender dysphoria is disqualifying unless:
    • As certified by a licensed mental health provider, the applicant demonstrates 36 consecutive months of stability in the applicant' s biological sex immediately preceding submission of the application without clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
    • The applicant demonstrates that the applicant has not transitioned to his or her preferred gender and a licensed medical provider has determined that gender transition is not medically necessary to protect the health of the individual; and
    • The applicant is willing and able to adhere to all applicable standards
  • A history of cross-sex hormone therapy or a history of sex reassignment or genital reconstruction surgery is disqualifying
  • The accession standards will be reviewed and either maintained or changed no later than 24 months from the effective date of this DTM
  • May consult with a military medical provider, receive a diagnosis of gender dysphoria, and receive mental health counseling, but may not obtain a gender marker change in DEERS or serve in their preferred gender
  • The United States Department of Defense and the United States Coast Guard provide equal opportunity to all Service members, in an environment free from harassment and discrimination on the basis of race, color, national origin, religion, sex, gender identity, or sexual orientation
  • Separation processing will not be initiated until the enlisted Service member has been formally counseled on his or her failure to adhere to such standards and has been given an opportunity to correct those deficiencies, or has been formally counseled that his or her indication that he or she is unable or unwilling to adhere to such standards may lead to processing for administrative separation and has been given an opportunity to correct those deficiencies
  • Separation processing will not be initiated until the enlisted Service member has been counseled in writing that the condition does not qualify as a disability"[1]

Except individuals

  • Individuals are exempt from the ban if they had before the effective date of this DTM:
    • Entered into a contract for enlistment into the Military Services using DD Form 4, "Enlistment/Reenlistment Document Armed Forces ofthe United States," available on the DoD Forms Management Program website at https://www.esd.whs.mil/Directives/forms/, or an equivalent, or were selected for entrance into an officer commissioning program through a selection board or similar process; and
    • Either:
      • Were medically qualified for Military Service or selected for entrance into an officer commissioning program in their preferred gender in accordance with DTM-16-005; or
      • As a Service member, received a diagnosis of gender dysphoria from, or had such diagnosis confirmed, by a military medical provider[1]

Waivers

  • The Secretaries of Military Departments and the Commandant of the United States Coast Guard my grant full or partial waivers on a case by case individual basis for transgender individuals who are not exempt pursuant to this policy
  • Delegating waiver authority may not be delegated lower than the Military Service Personnel Chiefs for the Secretaries of Military Departments and the Assistant Commandant for Human Resources for the Commandant of the United States Coast Guard.[1]

Enforcement

California National Guard

On February 6, 2019, Maj. Gen. Matthew Beevers, the assistant adjutant general for the California National Guard, told the California Assembly Veterans Affairs Committee that the California National Guard would not remove transgender soldiers and airmen from its ranks.[2]

United States Coast Guard

On April 18, 2018, Commandant Paul F. Zukunft told the United States House Appropriations Subcommittee on Homeland Security that the United States Coast Guard would continue to allow transgender members to serve unless specific legislation is passed banning them.[3]

United States Navy

Service Members may live socially in their preferred gender while off-duty. There is no policy that prohibits the ability of a Service Member to express themselves off-duty in their preferred gender. Appropriate civilian attire, as outlined in the uniform regulations, will not be determined based on gender. Regional commanders and the senior officers present may suspend or restrict the privilege of wearing preferred gender civilian attire to meet local conditions and host-nation agreements with foreign countries.[4]

Retention efforts

Congress Bill numbers Date introduced Sponsors # of cosponsors Latest status
116th Congress H.R. 1032 February 7, 2019 Jackie Speier 4 House - 02/08/2019 Referred to the Subcommittee on Military Personnel.
116th Congress S. 373 February 7, 2019 Kirsten Gillibrand 5 Senate - 02/07/2019 Read twice and referred to the Committee on Armed Services.

Lawsuits

There are currently four lawsuits challenging Directive-type Memorandum-19-004:

The decision by the United States Supreme Court to stay preliminary injunctions in the cases Karnoski v. Trump and Stockman v. Trump suggests the justices are likely to uphold the ban, however a final decision by the United Supreme Court probably won't be for a year or more.[5]

H.Res. 124

On March 28, 2019, the United States House of Representatives passed, with 238 yeas, 185 nays, 1 present, and 8 not voting, H.Res. 124, a non-biding resolution expressing opposition to banning service in the Armed Forces by openly transgender individuals. [6]

Opinion polling

Date(s) conducted Support ban Oppose ban Don't know / NA Margin of error Sample Conducted by Polling type
January 25, 2019 – February 16, 2019 24% 59% 8% 2% 8,823 adults Reuters / Ipsos Online
January 25, 2019 – January 28, 2019 22% 70% 8% 3.1% 1,004 voters Quinnipiac University Poll Online
January 25, 2019 – January 26, 2019 41% 59% 3.7% 1,000 registered voters The Hill / HarrisX Live interviewers call landlines and cell phones
January 22, 2019 – January 23, 2019 44% 43% 13% 1,000 registered voters Rasmussen Reports Likely voters
March 25, 2018 – March 27, 2018 34%[7] 49%[7] 13%[7] 3.4% 1,500 adults The Economist / YouGov Poll Web-based interviews
34%[8] 48%[8] 18%[8]
December 14, 2017 – December 17, 2017 23% 73% 5% 3.6% 1,001 adults CNN / ssrs Live interviewers call landlines and cell phones
July 27, 2017 – August 1, 2017 27% 68% 5% 3.4% 1,125 voters Quinnipiac University Poll Live interviewers call landlines and cell phones
July 27, 2017 – July 29, 2017 21% 68% 11% 2% 1,972 registered voters Morning Consult National Tracking Poll Online
July 26, 2017 – July 28, 2017 27% 58% 16% 3.2% 1,249 adults IPSOS / REUTERS POLL DATA Online

See also

References

  1. ^ a b c d Directive-type Memorandum (DTM)-19-004
  2. ^ California National Guard to transgender troops: ‘Nobody’s going to kick you out’
  3. ^ Coast Guard won’t bar transgender members without direct ban
  4. ^ NAVADMIN 070/19
  5. ^ Under Roberts, Supreme Court wades into transgender debate, avoids other tough issues
  6. ^ H.Res. 124: Expressing opposition to banning service in the Armed Forces by openly transgender individuals.
  7. ^ a b c Do you favor or oppose allowing transgender people to serve openly in the military?
  8. ^ a b c Do you approve or disapprove of Donald Trump issuing a ban on transgender people serving in the military?
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