The U.S. Department of Justice issued In-Service Transition for Transgender Services Members” on March 31, 2021. This was in response to President Joe Biden’s executive order, which was issued on January 25, 2021. About two months later, the Pentagon released new policies that comply with the directive in the executive order.
The Department of Defense released issuance titled: In-Service Transition for Transgender Service Members. The information in it will be effective 30 days after publication, on April 30, 2021. The announcement was released on International Transgender Day of Visibility. The issuance is several pages long, so I’m going to focus on some key points from it.
The Department of Defense and the Military Departments will institute policies to provide Service members a process by which they may transition gender while serving. These policies are based on the conclusion that open service by transgender persons who are subject to the same high standards and procedures as other Service members with regard to medical fitness for duty, physical fitness, uniform and grooming standards, deployability and retention is consistent with military service and readiness.
All Service members must be treated with dignity and respect. No person, solely on the basis of his or her gender identity, will be: involuntarily separated or discharged from the Military Services; denied reenlistment or continuation of service in the Military Services, or subjected to adverse action or mistreatment.
The Secretaries of the Military Departments and the Commandant, USCG must adhere to all provisions of this issuance. They must maintain a Service central coordination cell to provide multi-disciplinary (medical, mental health, legal, military personnel management) expert advice and assistance to commanders with regard to service by transgender Service members and gender transition in the military. This information will be used to assist commanders in the execution of DoD , Military Department, and Service policies and procedures.
It guides Secretaries to provide oversight regarding the implementation of the issuance, and any Military Department and Military Services regulations, policies, and guidance related to military service by transgender persons and persons with gender dysphoria, the protection of personally identifiable information, protected health information, and personal privacy considerations, consistent with DoD guidance.
Here is how the military will enable transgender troops to transition:
The Military recognizes a Service member’s gender by the Service member’s gender marker in DEERS (Defense Enrollment Eligibility Reporting System). DEERS is a computerized database of military sponsors, families, and others world-wide who are eligible for TRICARE and other benefits. The gender marker in DEERS is used to determine that a Service member has met all standards for uniforms and grooming, body composition assessment, physical readiness testing, Military Personnel Drug Abuse Testing Program participation “and other military standards applied with consideration of the Service member’s gender.
Service members will use berthing, bathroom, and shower facilities associated with their gender marker in DEERS.
Service members with a diagnosis that gender transition is medically necessary will receive associated medical care and treatment from a medical provider. The recommendations from a military medical provider will address the severity of the Service member’s medical condition and the urgency of any proposed medical treatment. Medical providers will provide advice to commanders in a manner consistent with processes used for other medical conditions that may limit the Service member’s performance of official duties.
The issuance makes it absolutely clear that the Department of Defense does not allow Commanders to treat transgender troops in ways that they would not be allowed to treat cis-gender troops. It specifically states: Nothing in this issuance will be construed to authorize a commander to deny medically necessary treatment to a Service member. It also states: In applying the tools described in this issuance, a commander will not accommodate biases against transgender individuals.
Any determination that a transgender Service member is non-deployable at any time will be consistent with established Military Department and Service standards, as applied to other Service members whose deployability is similarly affected in comparable circumstances.
The issuance says that when a cognizant military medical provider determines that a Service member’s gender transition is complete, and at a time approved by the commander in consultation with the Service member concerned, the Service member’s gender marker will be changed in DEETS and the Service member will be recognized in the self-identified gender.
There are a lot more details in the issuance. I recommend that people who are currently in the military, and who want to transition, read it over. It is also worth reading for people who are transgender and who are considering joining the military.
The Pentagon erased a Trump-era ban on transgender people serving in the military, issuing new rules that would offer them access to gender transition care and medical services denied under the Trump administration, The New York Times reported. The Times also reported that the change followed the executive order signed by President Biden in January of 2021, that restored protections put in place by during the Obama administration that had opened the ranks of the armed services to transgender people.
The executive order gave the Defense Department 60 days to evaluate the guidelines. The DoD moved swiftly to issue the new guidelines. According to The New York Times, the speed at which the change happened “signaled a willingness by the Biden administration to put its stamp on social issues at the Defense Department.”
Advocate posted a quote from GLAAD President and CEO Sarah Kate Ellis: “President Biden and the Pentagon have moved swiftly and certainly to undo the discriminatory and unjust transgender military ban put in place by the former President. This is a great day for America’s service members, who deserve a commander-in-chief who understands the service and sacrifice that comes with putting on the uniform of the United States military. This will make our military more ready, more cohesive, and more equal.”
It is going to be extremely difficult for Congress to overturn this executive order now that it has been accepted by the Department of Defense, especially since the DoD has provided detailed rules and guidelines regarding the order. HuffPost provided details about why Presidents are allowed to issue executive orders.
…The legal or constitutional basis for executive orders has several sources. The first is in Article II, Section I, Clause 1, which vests in the president the executive power, and Article III, Section 3, which requires that presidents “take care that the laws be faithfully executed.” While lacking precise definition, the executive power gives presidents broad enforcement authority to use their discretion to determine how to enforce the law or to otherwise manage the resources and staff of the executive department. Second, executive orders have a legal basis in power delegated by Congress to the president or executive department agencies….
One very interesting thing about this executive order is that the specific rules were written by the Department of Defense itself. It could mean that states cannot override these rules, since the Department of Defense has authority over everyone who serves in the military.
It seems to me that the Department of Defense’s rules regarding transgender troops overrides the harmful laws passed by states who want to discriminate against transgender people. No matter what base the transgender person serves at, they will still be able to access the medical care they need if/when they choose to transition.
Pentagon Released New Policies for Transgender Troops is a post written by Jen Thorpe on Book of Jen and is not allowed to be copied to other sites. If you enjoyed this blog post please consider supporting me on Ko-fi. Thank you!