Transgender-plus

As military defense lawyers, we at Cave & Freeburg, LLP, along with Brenner Fissell, are representing transgender-plus servicemembers navigating the Trump executive orders.

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