Update: On January 22, 2019, the Supreme Court lifted blocks on the trans military ban that were secured by two lawsuits while federal courts continue to review. Our case, Stone v. Trump, continues to move forward at district court in Maryland.
After four separate courts blocked the Trump administration’s ban on transgender people serving in the military, the White House announced a new plan to carry out the ban on March 23. How is this possible? And what does this mean?
We sat down with three lawyers from our LGBT & HIV Project — Josh Block, Chase Strangio, and James Esseks — to break it down.
Last week, the Trump administration announced a new plan to implement the ban on trans people serving in the military. What does that policy actually do?
Josh: They are calling it a new policy, but it’s really just following through on what Trump ordered last year. He told the military last year to ban transgender people from serving. Last week the military did it.
Chase: Yes, it is just the military's implementation of his order to ban trans people from serving. There is nothing new. The implementation of Trump's plan, which was released last Friday, is a wholesale ban on trans people serving, just like Trump asked for when he first tweeted.
Can some trans people stay in the military?
Josh: Yes, they made an exception to the policy for people who are already in the military and diagnosed with gender dysphoria to get around the court orders in place. But that is a small exception. The actual policy is that if you are transgender, you can't serve.
So trans people can't enlist unless they serve as the gender they were assigned at birth?
Chase: Correct, and only if they have taken no steps to transition of any kind. So really: Trans people can't enlist. Also, many trans people do have gender dysphoria and if they have access to a doctor, a diagnosis. But, for people currently serving, many were serving in the shadows before the previous ban was lifted in 2016 so do not have that documentation.
James: The implementation policy says that trans folks who don't want to transition, who don't suffer any dysphoria because of being trans, and who can serve in their assigned sex at birth can enlist or serve. But do those people even exist?
Chase: I don't think those people exist. Or if they do, they aren't trans.
What about trans people who are already enlisted/currently serving?
Chase: In theory, they can stay in the military if they are out now and have a diagnosis. But what we don't know is what kind of punishment they will face for being trans: lack of promotions, denial of deployment, forced discharge for pretextual reasons.
So there's a chance that if you're currently in the military and you come out as trans, you could be discharged?
Josh: If this new policy goes into effect, anyone who comes out as trans for the first time will be affected.
Didn't the court already strike this ban down multiple times? How can they do this?
Josh: They can't. That's why the government is asking the courts to dissolve their injunctions. The government is pretending that they have now gone through an independent analysis that is not infected by Trump's transparent discriminatory intent. It's very similar to the games the government has played with the Muslim ban. Pretending to pass a new policy and then claiming it isn't tainted by Trump's unconstitutional orders.
So the government is claiming it has new evidence that should be sufficient justification for the ban moving forward?
Josh: They were supposed to study the issue and claim to have found “new evidence” to support the ban. But that "new evidence" is mostly data from before transgender people were allowed to serve openly.
Chase: And it isn't even really much evidence at that. It is a lot of uncited ideological polemics about how trans people are just inherently devious and threaten the privacy of others with no support for any of it, which is why they have been condemned, for example, by the APA:
“The American Psychological Association is alarmed by the administration’s misuse of psychological science to stigmatize transgender Americans and justify limiting their ability to serve in uniform and access medically necessary health care."
Why do you all think the Trump administration is choosing the military as the vehicle for its anti-trans agenda?
Chase: Well they certainly aren't limiting their attacks to the military. They have attacked us in the context of education, employment, health care and housing. It is an all-out assault.
Josh: Right. The simple answer is that the administration wants to encourage discrimination against trans people any time it has power to do so. But the military does have a special salience on our society. Excluding trans people from the military sends a powerful message that trans people are not part of the fabric of American civic life.
What can people do?
Chase: People can support trans people in their lives, and make clear publicly that they oppose this administration's efforts to erase and target us. They can fight discrimination at the federal, state and local levels.
Add your name to stop Trump's ban on transgender military service
Anything else you think people should know?
Chase: It is important that we keep in mind this is part of an effort to confuse and exhaust us and it is part of the same strategy of this administration to roll back civil rights protections and target particular groups of people and communities. The injunctions are still in place so for now they are blocked from implementing any of this. We are fighting to keep it that way and will keep fighting.
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Press ReleaseDec 2024
LGBTQ Rights
President Biden Must Veto Defense Bill Attacking Military Families with Transgender YouthPresident Biden Must Veto Defense Bill Attacking Military Families with Transgender Youth
WASHINGTON — The U.S. Senate today passed a version of the National Defense Authorization Act that would ban coverage for gender-affirming care for transgender youth whose parents are active-duty military personnel. The American Civil Liberties Union is opposing final passage of the defense bill over the inclusion of this health care ban and calling on President Joe Biden to veto the bill. Section 708 of the NDAA would prohibit insurance coverage for “medical interventions for the treatment of gender dysphoria” such as hormone therapy and puberty-suppressant medications, which Speaker Mike Johnson says would “permanently ban transgender medical treatment for minors.” The same treatments would be covered by TRICARE for any medical purpose other than treating gender dysphoria, the clinical diagnosis for the psychological distress experienced by transgender people related to their gender identity. “By passing this bill, the House and Senate are forcing thousands of active-duty service members to choose between their careers in the military and the future of their transgender children,” said Mike Zamore, national director of policy & government affairs at the ACLU. “This unconscionable and unjustifiable attack on those families stands in direct contrast to President Joe Biden’s legacy of defending the civil rights of transgender Americans — including when few in his own party showed the courage to do so. President Biden should cement his legacy by vetoing this bill and sending it back to Congress to pass without Speaker Johnson’s last minute health care ban for servicemembers’ kids.” If signed by President Biden, this health care ban would be the first new anti-LGBTQ provision enacted by Congress and signed into law by the president since the enactment of the military’s since-repealed “Don’t Ask, Don’t Tell” policy for LGBTQ servicemembers and the since-repealed federal law barring recognition of same-sex marriages known as the Defense of Marriage Act. It is unknown how many transgender youth are currently enrolled in TRICARE or how many of those enrolled are currently receiving coverage for gender-affirming care. In one 2022 analysis, 2,500 minor patients sought care for gender dysphoria through TRICARE Prime insurance at military or civilian treatment facilities in 2017, and 900 received puberty suppressants or gender-affirming hormones. Earlier this month, the Supreme Court heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution. -
Press ReleaseDec 2024
LGBTQ Rights
Montana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's LicensesMontana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's Licenses
HELENA, Mont. – A Montana court has granted a preliminary injunction preventing the state of Montana from enforcing policies that bar transgender people from obtaining accurate sex designations on their birth certificates and driver’s licenses. After a prior restriction on amendments of birth certificates was struck down by the courts, in early 2024 the state of Montana enacted a new rule that categorically bars transgender Montanans from correcting the sex designation on their birth certificates. Around the same time, the Montana Department of Justice adopted a policy similarly restricting amendment of driver’s licenses. The plaintiffs challenged these policies in state district court, arguing that they violate various constitutional provisions, including the right to equal protection of the law. In a recent Montana Supreme Court decision, two justices concluded that discrimination on the basis of transgender status – as the state is engaging in here – is a form of sex discrimination that violates the Montana Constitution’s equal protection clause. The plaintiffs, two transgender women, are represented by the American Civil Liberties Union, the ACLU of Montana, and Nixon Peabody LLP. Plaintiff Jessica Kalarchik, a veteran who served in the United States Army for 31 years, said: “After finally being able to live my life openly as the woman I know myself to be, I am frustrated that my birth state, Montana, wants me to carry around a birth certificate that incorrectly lists my sex as male. I live my life openly as a woman, I am treated as a woman in my daily life, and there is no reason I should be forced to carry a birth certificate that incorrectly identifies me as male. Fortunately, the court agrees that this ridiculous policy should not be in effect.” “Once again the State of Montana chose to adopt a draconian policy that is clearly intended to marginalize transgender Montanans, only for that discriminatory action to be blocked by the courts,” said Akilah Deernose, executive director for the ACLU of Montana. “Here in Montana we treasure our right to privacy and to live our lives free from governmental intrusion. The State of Montana clearly has not learned any lessons from the past few years, where courts have repeatedly struck down unconstitutional laws targeting transgender Montanans.” “Forcing anyone to carry documents that contradict their identity unjustly violates their rights to privacy, equal treatment, and not being compelled to convey a government message about their sex that they disagree with,” said Malita Picasso, staff attorney for the ACLU’s LGBTQ & HIV Project. “Such a policy marks transgender people for further mistreatment and discrimination, essentially requiring them to carry papers that out them as transgender any time they need to provide identity documents. Fortunately, the court has refused to allow the state of Montana to subvert the freedom of transgender Montanans to control their own identity as this case goes forward.” In granting the plaintiffs’ motion for a preliminary injunction, the court held, “[i]f the challenged state actions discriminate against transgender individuals on the basis of their transgender status, they also necessarily discriminate the basis of sex.” The state has the option of appealing the district court’s ruling to the Montana Supreme Court, but the underlying case will proceed in district court. A trial has not yet been scheduled. -
FloridaDec 2024
LGBTQ Rights
Keohane v. DixonKeohane v. Dixon
On September 30, 2024, the Florida Department of Corrections rescinded its policy regarding treatment of gender dysphoria, which allowed for hormone therapy when deemed medically necessary, as well as access to clothing and grooming standards that accord with one’s gender identity. Under this new policy, grooming and clothing accommodations have been stripped away, and hormone therapy is not permitted unless an exception is deemed constitutionally required. The ACLU brought a class action challenging the policy. -
IdahoDec 2024
LGBTQ Rights
Robinson v. LabradorRobinson v. Labrador
Two incarcerated transgender women have sued the state of Idaho alleging that HB 688, a 2024 law barring state funding for gender-affirming medical care for transgender people, denies them access to the health care their doctors have prescribed for them and is a violation of their Eighth Amendment right to be free from cruel and unusual punishment. They represent a class of all incarcerated folks within the state of Idaho who face the loss of hormone therapy due to HB 668.