Q: How does the Trump Administration’s new implementation plan affect me or the lawsuits?
It doesn’t. The policy implements in essence the same categorical ban on transgender service that the President had already announced. The Court injunctions are still in place to prevent the policy from going into effect, and we will continue to fight the ban in court.
Q: I heard the President just released a memo. What does that mean?
A: The President’s memo (which you can view here) instructs the Department of Defense (DoD) and Department of Homeland Security (DHS) regarding the accession and retention of, and provision of medical care to, transgender troops. It contains both a “general policy” and two specific directives: The general policy is “return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016.” The two specific directives are (1) to maintain current policy prohibiting trans people from accessing into the military, and (2) to halt the use of DoD and DHS resources to fund gender-affirming surgery for military personnel.
What the policy means depends on your circumstances.
- Accession (joining the military): Trans people will be denied. This continues existing policy that was set to be discontinued on January 1.
- Medical care: DoD and DHS will no longer fund gender affirming surgeries “except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.” It is unclear how the Departments will interpret this restriction.
- Retention (staying in the military): Unlike the two circumstances above, there is no specific directive against retaining currently serving trans servicemembers. But the memo instructs DoD and DHS to “return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016,” which could mean separations.
Q: When does the new policy take effect?
A: Again, the answer depends on the circumstances.
- Accessions: The prohibition against accessions takes effect on January 1, 2018—but DoD and DHS already do not allow trans people to join. So, in essence, the memorandum extends existing policy.
- Medical care: The directive regarding medical care takes effect on March 23, 2018.
- Retention: The directive to return to policy “in place prior to June 2016” takes effect on March 23, 2018.
Q: What are the next steps?
A: Implementation is left largely to the Secretary of Defense, in consultation with the Secretary of Homeland Security, who is to make the determination “as to what steps are appropriate and consistent with military effectiveness and lethality, budgetary constraints, and applicable law.” The Secretary must submit a plan to the President that implements both the general policy and the two specific directives. The implementation plan is due February 21, 2018. We expect that the implementation plan will contain more detail on the following points:
- Medical care: How will DoD and DHS interpret the medical restriction? At what point will a trans person be considered to have “begun a course of treatment to reassign his or her sex”? Will social transition be considered the beginning? Or hormone therapy?
- Retention: How will DoD and DHS treat trans servicemembers serving openly? In fact, the memorandum states that the Secretary “shall determine how to address transgender individuals currently serving in the United States military.” Importantly, “[u]ntil the Secretary has made that determination, no action may be taken against such individuals” under the general policy directive.
Q: Is the new policy permanent?
A: It’s not clear: it is possible that the new policy announced in the memorandum won’t take effect at all or may be short-lived, though that seems unlikely. The memo directs DoD and DHS to return to pre-2016 policy “until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not have the negative effects” such as hindering military effectiveness and lethality, disrupting unit cohesion, or taxing military resources. In addition, the specific directives in the memorandum are effective only until the Secretary of Defense, in consultation with the Secretary of Homeland Security, advises the President that a change is warranted and provides a recommendation to the contrary that the President “finds convincing.”
Q: What should I do now?
A: Everyone’s circumstances are different, and we can’t give generalized legal advice through our website. But here are some observations based on the memorandum:
- If you have not started transition, starting before March 23, 2018, would mean that DoD and DHS have to continue treating you because you have “begun a course of treatment.” But it could also subject you to separation if the Secretary decides to reinstate a retention ban.
- If you’re in your re-enlistment window and want to continue serving, taking that step now may insulate you from separation (if a retention ban is reinstated) until the end of your new term of service.
- If you are refused any medical treatment or your re-enlistment is delayed or refused, please contact our legal team at firstname.lastname@example.org.
Q: Should military treatment facilities stop treating or diagnosing gender dysphoria?
A: Military treatment facilities should continue treating gender dysphoria. According to the President’s memo, “an individual who has already begun a course of treatment to reassign his or her sex” may continue receiving treatment to protect their health. Additionally, gender-affirming surgeries should continue until March 23, 2018. Please note that if you have not been diagnosed, choosing to see a military treatment facility for gender dysphoria may result in you being subject to a retention ban if one were to take effect. If your treatment is delayed or refused, please contact our legal team at email@example.com.
Q: I am a transgender servicemember and have not been seen by a military treatment facility. What should I do?
A: See above.
Q: I am a transgender servicemember and I have already begun my transition through a military treatment facility. Should I be concerned that suddenly I will be left without medical care?
A: No. The memo explicitly states that to protect your health, the military must continue to allow and fund your treatment, with specific reference to gender-affirming surgeries being allowed until March 23, 2018. Please see the above FAQ’s for more information on this. If your treatment is delayed or refused, please contact our legal team at firstname.lastname@example.org.
Q: Will I be separated from the armed forces?
A: Until the Secretary issues an implementation plan by February 21, 2018, we can’t say for sure. The memo states that the implementation plan should specifically address currently serving trans people.
Q: What are Members of Congress saying about this policy change?
A: Many of them are outraged! All Democrats appear to be united against President Trump’s policy. Many Republicans are as well. We will continue to link Congress’s responses, below, as they become available:
Q: What is OutServe-SLDN doing now that this ban is official policy?
Q: I want to become part of the lawsuit. What do I do?
A: Please fill out the form on the website of Lambda Legal’s (our co-counsel), located here.
Q: Haven’t there been studies about transgender service members?
A: Yes, there have been a number of studies. Most recently, the Palm Center published a study demonstrating that re-implementing a ban would cost the government $960 million. You can read that study here. Additionally, the RAND corporation published a study in 2016 here, the Palm Center published a 2014 study here, and the Williams Institute at UCLA published a 2014 study here.
Q: I’m really confused. Where can I find information about the actual policies for transgender service members?
A: The Department of Defense has not updated the policies since the memo was signed, but you can keep checking their website here. We expect the website to be updated before the end of August. The President’s memorandum for the Secretaries of Defense and Homeland Security, regarding transgender military service, can be found in its entirety, here.
Q: I am outraged. What can I do to help?
A: You can donate to OutServe-SLDN to help in our legal fight for full equality, and ask your friends, family, and network to do so as well, here. You can contact your elected officials to urge them to denounce this policy change and to reject any amendments to the NDAA that will deny medical coverage to transgender individuals or ban them from serving openly.