A History of Transgender and Gender Dysphoria Persons in the U.S. Military The history of transgender individuals and those experiencing gender dysphoria in the U.S. military has varied in periods of exclusion, evolving policies, legal challenges, and eventual inclusion efforts. The regulatory framework surrounding transgender military service has shifted based on changing presidential administrations, military directives, and judicial rulings.

Early Exclusion and Policies (Pre-2010s)

Historically, transgender individuals were barred from military service under regulations that classified gender dysphoria and related conditions as disqualifying medical conditions. Under Department of Defense (DoD) Instruction 6130.03 (Medical Standards for Appointment, Enlistment, or Induction into the Military Services)[1], those diagnosed with “psychosexual conditions” such as gender identity disorder were deemed unfit for service. Additionally, DoD Directive 1332.14 (Enlisted Administrative Separations) and DoD Directive 1332.30 (Separation of Regular and Reserve Commissioned Officers) allowed for the discharge of service members who exhibited gender nonconformity or sought medical transition procedures. These regulations aligned with the broader stigmatization of LGBTQ+ individuals in military service, exemplified by the “Don’t Ask, Don’t Tell” (DADT) policy of 1993, which specifically targeted lesbian, gay, and bisexual personnel but indirectly reinforced the exclusion of transgender individuals.

Obama-Era Reforms and Open Service (2015–2017)

A significant shift occurred under the administration of President Barack Obama. In 2015, then-Secretary of Defense Ashton Carter announced a review of policies banning transgender military service. Following a study period, in 2016, the DoD lifted the ban on open transgender military service through DoD Instruction 1300.28 (In-Service Transition for Transgender Service Members), allowing transgender individuals to serve openly and receive medical care related to transition. The revised policy permitted transgender individuals to enlist and remain in service if they were stable in their gender identity for at least 18 months.[2] The instruction also provided access to hormone therapy and gender-affirming surgeries through military healthcare systems. This progressive stance marked the first official recognition of transgender service members in U.S. military history.

Trump Administration Ban and Legal Challenges (2017–2021)

In 2017, President Donald Trump announced via Twitter that transgender individuals would no longer be permitted to serve in the military “in any capacity.” [3] This announcement led to the 2018 DoD policy, which barred most transgender individuals from enlisting unless they served in their birth gender and did not seek medical transition. The policy faced immediate legal challenges, including Doe v. Trump (2017), Karnoski v. Trump (2017), Stockman v. Trump (2017), and Stone v. Trump (2017). Lower courts issued injunctions blocking the ban, citing potential equal protection violations under the Fifth Amendment. However, in 2019, the U.S. Supreme Court allowed the ban to go into effect while litigation continued, and the Department of Defense implemented new restrictions. Under the revised 2019 DoD policy, transgender individuals could only serve if they had not undergone transition. Those already serving under the 2016 policy were permitted to remain, but recruits faced stringent medical restrictions.

Biden Administration and Policy Reinstatement (2021–Present)

Upon taking office in 2021, President Joe Biden issued Executive Order 14004 (Enabling All Qualified Americans to Serve Their Country in Uniform)[4], directing the DoD to reinstate inclusive policies for transgender military service. The DoD repealed the 2019 restrictions and restored DoD Instruction 1300.28, allowing transgender individuals to enlist and transition while serving. Secretary of Defense Lloyd Austin reaffirmed that gender identity should not be a barrier to service. The updated policies ensured access to military healthcare for gender-affirming treatments and reinforced protections against discrimination.

Current Legal and Policy Landscape

As of 2024, transgender service members can openly serve and receive necessary medical care. However, the future of transgender military service remains subject to potential political changes and legal challenges. The courts have generally ruled in favor of inclusion, citing equal protection guarantees and military readiness arguments. However, the possibility of shifts in administration or congressional policy underscores the need for continued engagement and awareness of these rights.

Conclusion

The history of transgender and gender dysphoric persons in the U.S. military is a testament to the resilience and determination of these individuals. From facing outright bans to engaging in legal battles and eventually witnessing policy reversals, transgender service members have consistently fought for the right to serve openly. While current policies support inclusion, the issue remains politically contentious, and future developments may continue to shape the landscape of transgender military service.

References

• DoD Instruction 6130.03 (Medical Standards for Appointment, Enlistment, or Induction into the Military Services)
• DoD Directive 1332.14 (Enlisted Administrative Separations)
• DoD Directive 1332.30 (Separation of Regular and Reserve Commissioned Officers)
• DoD Instruction 1300.28 (In-Service Transition for Transgender Service Members)
• Executive Order 14004 (2021)
• Doe v. Trump, 275 F. Supp. 3d 167 (D.D.C. 2017)
• Karnoski v. Trump, 926 F.3d 1180 (9th Cir. 2019)
• Stone v. Trump, 356 F. Supp. 3d 505 (D. Md. 2019)
• Stockman v. Trump, 331 F. Supp. 3d 990 (C.D. Cal. 2018)

Notes:

[1] Beard, D. L. (2021). “Bad Paper”. https://core.ac.uk/download/477653621.pdf

[2] Pentagon Lifts Ban on Transgender Troops Serving in the U.S. Military. https://www.mic.com/articles/147560/pentagon-lifts-ban-on-transgender-troops-serving-in-the-u-s-military

[3] Lauren Willson – The Rocky Mountain Collegian. https://collegian.com/author/lauren-willson/

[4] Hillman, R. (2024). THE BATTLE OVER BOSTOCK: DUELING PRESIDENTIAL ADMINISTRATIONS & THE NEED FOR CONSISTENT AND RELIABLE LGBT1 RIGHTS. The American University Journal of Gender, Social Policy & the Law, 32(1), 1-99.

[5] Gross, S. (2017). A Mystery Wrapped in an Encryption: Surveillance and Privacy in the Encrypted Era. Northwestern Journal of Technology and Intellectual Property, 15(1), 73-92.

[6] Mark Knopfler Shares the Inspirational Story Behind “Symphony of Heroes” – DireStraits. https://direstraitsblog.com/blog/mark-knopfler-shares-inspirational-story-behind-symphony-of-heroes/

[7] Berrios, K. L. (2021). CORRELATIONS BETWEEN LOCAL HEALTH CONDITIONS AND MILITARY ACCESSIONS. https://core.ac.uk/download/427424314.pdf

Let’s start with my former evidence professor, Paul Gianelli (a former Army JA).

Confrontation, Experts, and Rule 703

Paul C. Giannelli Case Western Reserve University – School of Law
20 J.L. & Pol’y 443 (2012)
Case Legal Studies Research Paper No. 2012-24

Abstract:
The United States Supreme Court has decided several cases concerning expert testimony and the Confrontation Clause. This essay argues that confrontation issues are complicated by Federal Evidence Rules 703 and 705, which changed the common law rules. Altering the common law made sense in civil cases because civil rules of procedure provide extensive discovery, which ensures basic fairness. In contrast, discovery in criminal cases is quite limited, which undercuts an accused’s ability to meaningfully confront prosecution experts at trial.

And, the ever resourceful and confrontation-litigant Professor Richard D. Friedman, “Thoughts on Williams, Part I: Reasons to Think the Impact May be Limited,” blogPost, 19 June 2012.

For an interesting pre-decision discussion.

Williams v. Illinois and the Confrontation Clause: Does Testimony by a Surrogate Witness Violate the Confrontation Clause?

Ronald J. Coleman Georgetown University Law Center

Paul F. Rothstein Georgetown University Law Center
January 22, 2012

Georgetown Public Law Research Paper No. 12-007

Abstract:
This article comprises a four-part debate between Paul Rothstein, Professor of Law at Georgetown Law Center, and Ronald J. Coleman, who works in the litigation practice group at Cleary Gottlieb Steen & Hamilton LLP, on Williams v. Illinois, a Supreme Court case that involves the Confrontation Clause, which entitles a criminal defendant to confront an accusing witness in court. The issue at hand is whether said clause is infringed when a report not introduced into evidence at trial is used by an expert to testify about the results of testing that has been conducted by a non-testifying third party.
The debate, originally published on Public Square.net, includes the following parts:

• Part 1: Ronald J. Coleman: Dexter’s Dilemma: Rule 703 Does Not Violate the Confrontation Clause
• Part 2: Paul Rothstein: Surrogate Witnesses Just Won’t Cut It: A Response to Ronald Coleman
• Part 3: Ronald J. Coleman: More on Williams v. Illinois: A Response to Paul Rothstein
• Part 4: Paul Rothstein: Williams v. Illinois: Responses to Coleman’s Arguments

Mother Jones’ Adam Weinstein reports that soldiers at Virginia’s Fort Eustis were recently punished for refusing to attend one of the many Christian evangelical events sponsored by the commanding base general and “self-professed ‘reborn’ officer, Maj. General James E. Chambers.” The incident and subsequent investigation have revealed a Fort Eustis culture where Christian evangelism isn’t just pervasive, it’s a direct order. Weinstein explains that this isn’t just a quirky, isolated incident. It’s part of an increasingly zealous military culture of evangelical-or-else[.]

Here is a link to the Mother Jones article.

Here is a link to the May 2009 Harpers article.

AP has now picked up on the Smoking Gun pieces about the HIV airman at McConnell AFB. See here.

A former commander in the Tennessee State Guard has lost an appeal to overturn his conviction for trying to provide his soldiers with homemade machine guns for possible use in defending the state. At trial and in his appeal, Mr. Hamblen argued that he and his soldiers had a Second Amendment right as members of the state militia to possess military-grade weapons. He said Tennessee’s state guard arsenal included only 21 M-16 rifles for 3,500 volunteer soldiers. Concerned that his unit, the 201st Military Police Battalion, might get called into active duty, Hamblen obtained gun conversion kits to make semi-automatic rifles into fully automatic rifles. At least one machine gun was used in a training exercise.

The court’s opinion in Hamblen v. United States, has more facts of interest.

The all-volunteer State Guard is one of four organizations within the Tennessee Department of the Military and is authorized by Tennessee statute. The State Guard’s mission is to augment the Tennessee National Guard, and it typically performs ceremonial duties. The State Guard is authorized to become an armed force if it is activated by the governor of Tennessee. Although it has been called into service, the State Guard has not recently been activated. If activated, the governor of Tennessee is authorized to obtain weapons needed to equip the State Guard. State Guard policy prohibits members from either keeping State Guard weapons in their possession or carrying their own individual weapons in the course of their duty. Hamblen never discussed his machine gun possession with his superiors at the State Guard, and no law enforcement officials or State Guard superiors knew of Hamblen’s machine guns. Hamblen admitted that no one at the State Guard ever ordered or even authorized him to obtain any weapons for the State Guard. He also admitted that he knew that his possession of the machine guns violated the statutes under which he was convicted. He believed, however, that he was authorized to possess the machine guns because the U.S. Constitution provides an exception to gun control laws and gives people the right to possess militarily useful weapons for an armed force like the State Guard.

The Hamblen decision interprets and applies Heller.

A former military nurse will be court-martialed for allegedly killing three terminally ill patients at the Air Force’s largest hospital. Capt. Michael Fontana is set to enter a plea in September at Lackland Air Force Base, near San Antonio. The military announced Tuesday that a trial date will also be set.

Charges have not been referred capital.