What does Brett Kavanaugh mean for Trump’s transgender troop ban?

Matt Saintsing
October 09, 2018 - 2:49 pm

Photo by Oliver Contreras/SIPA USA


The Trump administration could restore a ban on transgender service members serving openly, after the Senate confirmed Brett Kavanaugh to the Supreme Court over the weekend. 

A 2016 Pentagon policy implemented by then-Defense Secretary Ash Carter allows transgender troops to serve openly. But a lengthy review conducted by the Pentagon under Mattis this year found individuals diagnosed with gender dysphoria suffer from increased rates of depression, substance abuse, and suicide, and a new policy banning their service was implemented. Four separate federal courts, however, issued injunctions stopping the ban. 

Where it stands now, the 2016 policy allowing open transgender service is still in place as the issue works its way through the legal system.

But the question of whether the Pentagon could move forward with the ban could head to the Supreme Court, where Kavanaugh now sits and could be a decisive voice. 

A federal appeals court in Portland, Ore. will listen to a request from the Trump administration Wednesday to lift an injunction so the Defense Department can enforce the ban. Four lawsuits have been filed and could possibly go to trial in 2019.

U.S. Navy photo by Mass Communication Specialist 2nd Class Jeanette Mullinax

“The terms of the ban, which would take effect if the preliminary injunctions were lifted, will impose a policy even more harmful and discriminatory than ‘don’t ask, don’t tell’ for 90% of transgender troops,” reads a memo from the Palm Center, a California-based think-tank that studies LGBTQ issues in the military. 

“They will be forced to leave the military or to renounce their transgender identity, since discovery of any need to transition gender could mark them as unfit and target them for separation.”

The organization argues that transgender personnel will be the only group denied their right to seek out proper medical care based on the advice of military physicians. According to the Palm Center, the future of transgender military personnel lies in the hands of Kavanaugh. 

A district court in Washington, D.C. previously concluded that under the plan implemented by Defense Secretary Jim Mattis, “those transgender persons who are not summarily banned are only allowed in the military if they serve in their biological sex.” 

However, “transgender persons do not identify or live in accord with their biological sex,” said the court. 

Some 8,900 U.S. service members are transgender, according to the Pentagon, and just 937 have been diagnosed with gender dysphoria. A 2016 study conducted by the Rand Corporation, at the request of the Defense Department, pushes back on the assertion that high costs of medical needs would be a burden on the Pentagon.  Of the military health care budget of about 6.3 billion, only two to eight million dollars would account for transition-related costs. 

The four federal lawsuits are underway in Maryland, California, Washington state, and Washington, D.C.

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