Department of Defense Instruction 1300.28

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Military Service by Transgender Persons and Persons with Gender Dysphoria
United States Department of Defense Seal.svg
PresentedMarch 12, 2019
Date effectiveApril 12, 2019
SignatoriesDavid L. Norquist, Under Secretary of Defense
Military Service By Transgender Persons and Persons with Gender Dysphoria
United States Department of Defense Seal.svg
Date effectiveSeptember 4, 2020
SignatoriesMatthew P. Donovan, Under Secretary of Defense for Personnel and Readiness

The Trump trans soldier exclusion took effect with the Directive-type Memorandum-19-004 signed by David L. Norquist of the United States Department of Defense. The DTM banned most transgender individuals from serving or enlisting in the United States Armed Forces and applied to all organizational entities in the United States Department of Defense and the United States Coast Guard.

The memorandum banned new applicants who have any history of medical transition treatment. Applicants with a history of gender dysphoria were presumptively disqualified unless they have been deemed "stable" after 36 months and willing to detransition to their assigned sex.[1][2]

The DTM took effect on April 12, 2019. Originally scheduled to expire on March 12, 2020, it was extended until September 12, 2020.[3][4] Before it expired, it was replaced by a 2020 version of DoD Instruction 1300.28, “Military Service by Transgender Persons and Persons with Gender Dysphoria," which took effect on September 4, 2020.[5]

After the 2020 United States presidential election, Joe Biden became the 46th President of the United States. One of his first executive orders expected after being sworn in as United States President on January 20, 2021 is the repeal of Presidential Memorandum on Military Service by Transgender Individuals which is expected to happen on January 24, 2021.[6][7] On January 25, 2021, Biden signed an executive order which required the U.S. Department of Defense to reverse the transgender military ban[8][9][10]

History[edit]

Protests against Trump's July 2017 tweet where he stated he would be banning transgender personnel in the military

On October 3, 2016, Donald Trump called transgender individuals serving the United States military as "politically correct", but said he would leave such decisions to top military leaders. On May 16, 2017, a letter that was signed by dozens of right-leaning groups pushed for banning transgender individuals from the United States military. After the failure of passage of House Amendment 183,[11] an amendment to prohibit the Pentagon funding gender reassignment surgeries sponsored by Vicky Hartzler,[12] to the National Defense Authorization Act for Fiscal Year 2018, House Republicans went to Defense Secretary James Mattis to prohibit the Pentagon funding gender reassignment surgeries, who refused to immediately upend the policy. An extensive Defense Department review of the policy was already underway, but a decision wasn't expected for months. So House Republicans went to the White House to prohibit the Pentagon funding gender reassignment surgeries. Chief strategist Steve Bannon encouraged Trump to deal with the matter now and played a role in pushing Trump to move ahead with banning transgender individuals from the military, despite the ongoing Pentagon review.[13][14]

In July 2017, the Freedom Caucus threatened not to vote for the budget unless President Trump instituted some prohibition on paying for gender reassignment surgeries and hormone treatments for transgender people serving in the military. The interagency process had gone to work on the question. The general counsels of the departments and agencies had weighed in. The Deputies Committee had met, and there were several Principals Committee meetings. There was no agreement, but four options were developed. The first was to retain the Obama-era policy. The second was giving Secretary Jim Mattis leeway. The third was to ban transgender people from the military, but come up with a plan for transgender people currently serving. The fourth was to ban all transgender people from the military.[15]

On July 26, 2017, President Trump tweeted that he would ban transgender personnel in the United States military.[16] According to Politico, President Trump had always planned to ban transgender individuals from the military and prohibit the Pentagon funding gender reassignment surgeries. According to numerous congressional and White House sources, the tweet was a last-ditch attempt to save a House proposal that was a priority for Trump and was on the verge of defeat.[13][17]

On August 4, 2017, a guidance called “A Guidance Policy for Open Transgender Service Phase Out” was approved by the White House Counsel's office. The guidance encourages early retirement, push out any enlisted personnel after their contract expired, and fire transgender officers who are up for promotion. The new policy did allow transgender service members to continue serving, but offered no protection from harassment or other efforts to get them to quit, along with prohibiting coverage of transitioning or other medical costs. The guidance was expected to be transmitted to the Pentagon the week of August 7, 2017, but the threat of war with North Korea, internal conflict within the White House, and push back from the military prompted the authors of the new Trump policy to revise it again.[18][19]

Provisions[edit]

  • 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"[3]

Exempt individuals[edit]

  • 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 of the United States," available on the DoD Forms Management Program website at DoD Forms Management, 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[3]

Waivers[edit]

  • 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.[3]

Waivers are granted separately for gender dysphoria, to serve as one's preferred gender, and to receive maintenance hormone therapy. There is ambiguity as to the consequences of a denial of the waiver.[20]

On May 14, 2020, for the first time the United States Navy granted a wavier to an anonymous Naval officer, who was facing involuntary discharge serve, to serve in their preferred gender, to include obtaining a gender marker change in (the Defense Enrollment Eligibility Reporting System) and being allowed to adhere to standards associated with their preferred gender, such as uniforms and grooming.[21]

Comparison table[edit]

Restrictions 2016 versus 2019[1]
Group 2016–2019 2019–2020
Service members Transgender with no history or diagnosis of gender dysphoria May serve in biological sex
With diagnosis of gender dysphoria May serve in preferred gender upon completing transition May serve in biological sex. If unable/unwilling to serve in biological sex, separation procedure may apply.
Applicants Transgender with no history or diagnosis of gender dysphoria May serve in biological sex
With diagnosis or history of gender dysphoria Presumptively disqualified unless stable for 18 months in preferred gender or biological sex Presumptively disqualified unless stable for 36 months and willing and able to serve in biological sex
With history of medical transition treatment Presumptively disqualified

Enforcement[edit]

As of August 7, 2019, according to the Washington Blade, the United States Army, the United States Navy, the United States Air Force, the United States Marine Corps, and the United States Coast Guard have engaged in no discharges under Directive-type Memorandum-19-004. Also reported by the Washington Blade, the United States Army, the United States Navy, the United States Air Force, and the United States Marine Corps have engaged in no denial of enlistment to applicants under Directive-type Memorandum-19-004.[22]

United States Coast Guard[edit]

As of August 7, 2019, according to the Washington Blade, the United States Coast Guard reported denying enlistment to two applicants under Directive-type Memorandum-19-004.[22]

United States National Guard[edit]

The following state national guards are currently not enforcing the ban on transgender troops: California, Colorado, Massachusetts, Nevada, New Jersey, New Mexico, Oregon, and Washington.[23][24] [25][26]

United States Navy[edit]

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.[27]

United States Naval Academy[edit]

Starting in the fall of 2020, the United States Naval Academy will ban people who are transgender from attending the school.[28]

Retention bills[edit]

Congress Bill numbers Date introduced Sponsors # of cosponsors Latest status
116th Congress H.R. 2500 May 2, 2019 Adam Smith 1 House - December 7, 2019 The Clerk was authorized to correct section numbers, punctuation, and cross references, and to make other necessary technical and conforming corrections in the engrossment of H.R. 2500.
116th Congress H.R. 2740 May 15, 2019 Rosa L. DeLauro 0 Senate - October 7, 2019 Read the second time. Placed on Senate Legislative Calendar under General Orders. Calendar No. 140.
116th Congress H.R. 1032 February 7, 2019 Jackie Speier 23 House - August 2, 2019 Referred to the Subcommittee on Military Personnel.
116th Congress S. 373 February 7, 2019 Kirsten Gillibrand 12 Senate - July 2, 2019 Read twice and referred to the Committee on Armed Services.

Lawsuits[edit]

Four lawsuits challenging Directive-type Memorandum-19-004 yielded no judicial remedies:

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 if they ever rule on the issue.[29]

H.Res. 124[edit]

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-binding resolution expressing opposition to banning service in the Armed Forces by openly transgender individuals.[30]

Opinion polling[edit]

Date(s) conducted Support ban Oppose ban Don't know / NA Margin of error Sample Conducted by Polling type
May 15, 2019 – May 30, 2019 26% 71% 2% 4% 1,017 adults Gallup Telephone
April 9, 2019 – April 20, 2019 32% 63% 5% 3.5% 1,100 adults PRRI Landline and cellphone
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%[31] 49%[31] 13%[31] 3.4% 1,500 adults The Economist / YouGov Poll Web-based interviews
34%[32] 48%[32] 18%[32]
December 14, 2017 – December 17, 2017 23% 73% 5% 3.6% 1,001 adults CNN / ssrs Live interviewers call landlines and cell phones
August 2, 2017 – August 8, 2017 30% 64% 6% 2.7% 2,024 adults PRRI Landline and cellphone
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
July 26, 2017 – January 27, 2017 44% 45% 11% 3% 1,000 registered voters Rasmussen Reports Likely voters

Reactions[edit]

Laverne Cox said, "This administration's ban on transgender service members will go into effect this Friday April 12, 2019. They have targeted trans people from the moment they took power."[33]

Kirsten Gillibrand blasted Trump for his discriminatory directive, saying, "A man [Donald Trump] who has never served has told men and women that their service is not worthy, based on their gender identity. I can't think of a more discriminatory, outrageous statement."[34] Another Democratic politician, Steve Bullock, the governor of Montana, announced he would allow transgender Americans to serve in the military.[35] Elizabeth Warren pledged to overturn military transgender ban on the first day of her presidency.[36]

The American Medical Association told the Associated Press in April 2019 that the memorandum mischaracterized transgender people as having a "deficiency."[37]

On March 18, 2019, Democratic 2020 presidential candidate Cory Booker vowed to reverse Donald Trump's ban on transgender individuals serving in the military if elected.[38]

The military ban has widespread support among Republicans. The Republican National Committee has endorsed the trans ban from the military.[39][40] Representative Ken Calvert of California has called for the exclusion of trans soldiers due to "deployability" problems.[41] Calvert stated, "Individuals with medical conditions that do not allow them to deploy, such as those identified in the policy, adversely impact military readiness and reduce the military's warfighting capability."

Some of Trump's own supporters have expressed their opposition to Directive-type Memorandum-19-004, including Christopher R. Barron.[42] In addition, 56 retired generals and admirals signed on to a statement opposing the directive.[43]

During his 2020 presidential campaign, Mike Bloomberg pledged to reverse the ban on transgender individuals in the military.[44]

In September 2020, the Democratic nominee Joe Biden promised, "As president, I will direct the Department of Defense to allow transgender service members to serve openly, receive needed medical treatment, and be free from discrimination."[45][46] When Biden was asked about "the rights of transgender people, banning them from military service" in a televised townhall on October 15, 2020, Biden replied, "I would just flat-out change the law. I would eliminated [Mr. Trump's] executive orders, number one."[47]

Repeal and inclusion[edit]

On January 25, 2021, U.S. President Joe Biden signed Executive Order 14004, which ended the transgender military ban.[48] Despite immediately revoking the 2017 and 2018 presidential memorandums which aided the instruction, the U.S. Department of Defense is not required to repeal the Instruction until after holding consultation with the U.S. Joint Chiefs of Staff.[9] The Department of Defensed announced gender inclusion at the end of March 2021.[49]

See also[edit]

References[edit]

  1. ^ a b SDGLN, Timothy Rawles-Community Editor for (April 12, 2019). "Trans folks are now banned from serving in the U.S. military forces". San Diego Gay and Lesbian News.
  2. ^ Kime, Patricia (March 13, 2019). "The 9,000 Transgender Troops in Uniform Will Continue to Serve, Officials Say". Military.com.
  3. ^ a b c d "DTM DRAFT-151 MILITARY SERVICE BY TRANSGENDER PERSONS AND PERSONS WITH GENDER DYSPHORIA OSD002299-19 RES Final.pdf". Google Docs.
  4. ^ "Directive-type Memorandum (DTM)-19-004 - Military Service by Transgender Persons and Persons with Gender Dysphoria March 17, 2020" (PDF).
  5. ^ Office of the Under Secretary of Defense for Personnel and Readiness (September 4, 2020). "DoD Instruction 1300.28: Military Service by Transgender Persons and Persons with Gender Dysphoria" (PDF). www.esd.whs.mil. Retrieved September 7, 2020.
  6. ^ Friedman, Zack. "Biden Plans These 5 Executive Orders". Forbes.
  7. ^ "Biden expected to repeal Trump's transgender military ban as soon as Monday". www.cbsnews.com. Retrieved January 25, 2021.
  8. ^ Baldor, Lolitia C.; Miller, Zeke (January 25, 2021). "Biden lifts transgender military ban". Associated Press. Retrieved January 25, 2021.
  9. ^ a b "Executive Order on Enabling All Qualified Americans to Serve Their Country in Uniform". The White House. January 25, 2021.
  10. ^ "See Biden sign executive order lifting transgender military ban - CNN Video" – via www.cnn.com.
  11. ^ Hartzler, Vicky (July 13, 2017). "H.Amdt.183 to H.R.2810 - 115th Congress (2017-2018)". www.congress.gov.
  12. ^ Stark, Liz. "Hartzler: Transgender service members 'costly' to military". CNN.
  13. ^ a b Bade, Rachael; Dawsey, Josh. "Inside Trump's snap decision to ban transgender troops". POLITICO.
  14. ^ Nelson, Louis. "Trump bans transgender individuals from U.S. military service". POLITICO.
  15. ^ "Fear: Trump in the White House". Retrieved February 10, 2021.
  16. ^ Note, Recent Social Media Posts: In Tweets, President Purports to Ban Transgender Servicemembers, 131 Harv. L. Rev. 934 (2018)
  17. ^ "Here's how Trump responded to a question about women and transgender individuals in the military". Archived from the original on April 19, 2019.
  18. ^ "Trump's Trans Military Ban Now Policy". August 5, 2017.
  19. ^ "Navy Secretary Spencer says 'any patriot' should be allowed to serve". August 11, 2017.
  20. ^ "Year after trans military ban, legal battle rages on". NBC News.
  21. ^ Barbara Starr and Caroline Kelly. "US Navy grants first waiver for transgender service member to serve under their preferred gender". CNN.
  22. ^ a b "Military reports no discharges under trans ban — but advocates have doubts". August 7, 2019.
  23. ^ "4 state National Guards have joined California in defying Trump's transgender military ban". Task & Purpose. April 24, 2019.
  24. ^ Politics, Ernest Luning, Colorado. "Polis: Colorado National Guard won't enforce Trump's ban on transgender troops". Colorado Politics.
  25. ^ Jersey, Out In (May 5, 2019). "NJ Army National Guard will defy Trump's ban on trans military service members".
  26. ^ "Transgender troops welcome in Massachusetts National Guard, state official says". Army Times. Associated Press. July 18, 2019.
  27. ^ "NAVADMIN 070/19".
  28. ^ "Naval Academy to ban transgender students starting in fall 2020". www.cbsnews.com.
  29. ^ Savage, David G. "Under Roberts, Supreme Court wades into transgender debate, avoids other tough issues". latimes.com.
  30. ^ "H.Res. 124: Expressing opposition to banning service in the Armed ... -- House Vote #135 -- Mar 28, 2019". GovTrack.us.
  31. ^ a b c Do you favor or oppose allowing transgender people to serve openly in the military?
  32. ^ a b c Do you approve or disapprove of Donald Trump issuing a ban on transgender people serving in the military?
  33. ^ "Tweet". twitter.com. Retrieved February 10, 2021.
  34. ^ "Transgender issues: Where the 2020 Democratic presidential candidates stand". www.cbsnews.com.
  35. ^ http://www.washingtontimes.com, The Washington Times. "Warren plan would ban big firms from immediately hiring senior government officials". The Washington Times.
  36. ^ [1]
  37. ^ "Health". ABC News.
  38. ^ "Booker pledges to undo Trump's 'un-American' trans military ban". NBC News.
  39. ^ "Republican National Committee endorses ban on transgender military service".
  40. ^ Johnson, Chris. "RNC Approves Resolution Backing Trump's Transgender Military Ban".
  41. ^ Kelley, Patrick (June 19, 2019). "Trump's military transgender ban blocked in House spending bill" – via www.rollcall.com.
  42. ^ "People May Hate Roger Stone, But He's An LGBT Ally". BuzzFeed News.
  43. ^ Kheel, Rebecca (August 1, 2017). "56 retired generals, admirals warn against Trump's transgender ban". TheHill.
  44. ^ "Bloomberg Philanthropies". Bloomberg Philanthropies.
  45. ^ "Biden Praises LGBTQ+ Soldiers, Slams Trump in New Message". www.out.com. September 21, 2020.
  46. ^ "Joe Biden uses anniversary of Don't Ask, Don't Tell repeal to pledge to overturn Trump's abhorrent trans military ban". September 21, 2020.
  47. ^ "Biden tells mother of transgender daughter there should be "zero discrimination"". www.cbsnews.com.
  48. ^ Bennett, Geoff; Edelman, Adam (January 25, 2021). "Biden reverses Trump's transgender military ban". NBC News. Retrieved January 25, 2021.
  49. ^ https://www.defense.gov/Newsroom/Releases/Release/Article/2557220/dod-announces-policy-updates-for-transgender-military-service/

External links[edit]