According to Palm Center Director Aaron Belkin, the door to open transgender service in the United States military has been partially unlocked.
A report authored by Palm Center Legal Co-Director Diane Mazur and released in November detailed an Aug. 5, 2014, Department of Defense ( DoD ) action that "weakens the prohibition against transgender personnel in military service and requires reassessment of the policy."
While transgender service members had faced barriers in terms of both enlisting and remaining in the military spelled out in antiquated and —in one case—offensive vocabulary, Mazur wrote that the DoD now takes "no position on which specific conditions should be disqualifying for continued military service."
As far as the Pentagon is concerned, the ban remains in effect. However, the potential now exists for the 15,500 trans* and gender non-conforming men and women already in the military not to run afoul of the retention portion of it that had forced them to remain invisible even after the repeal of "Don't Ask, Don't Tell" ( DADT ) four years ago.
In a Nov. 26 press release, retired General and Flag Officers, including Lieutenant General Claudia Kennedy, Major General Vance Coleman, and Rear Admiral Jamie Barnett issued a joint statement "showing that the Army, Air Force, and Navy/Marines have failed to comply with new Defense Department rules on transgender personnel."
"There has been a huge change in the rules that is more likely to have an impact sooner rather than later," Belkin explained. "Before Aug. 5, the retention prohibition was spelled out both in Defense Department-wide regulations but also in service specific [Army, Air Force, Coast Guard, Marine Corps, Navy] regulations. On August 5, the department-wide regulation was modified in critical ways: the retention regulation no longer bans service by transgender personnel. It also no longer requires the services to ban them. If the services want to ban someone, they have to show that the condition compromises fitness for duty or deployment."
However, Belkin added that—even though the DoD exclusion has been eliminated—the individual services still retain their transgender ban. "The service regulations are out of compliance with the Defense Department regulations," he said. "To use an analogy, federal law and state law are not required to be consistent but state law cannot violate federal law. It's the same with the Defense Department. [The services] cannot violate departmental regulations."
Fiona Dawson is the host and producer of TransMilitary—a series of documentaries that viscerally tell the stories of transgender service members remaining on active duty and in hiding.
"I think it's another step forward," Dawson said. "These Palm Center studies are proving what we already know—the outdated policies that are decades behind the curve of other strong nations are really discrimination. [Transgender people] are perfectly capable of honorably serving in the US military."
Belkin cautioned that there is still a long way to go in removing the ban completely. "Imagine that there's a door locked with three deadbolts," he said. "The Pentagon got rid of one of the deadbolts and loosened the second. Enlistment regulations are still in effect. As far as retention goes, I suppose that if a service member was fired for being transgender, they could make a legal claim that they're being fired under a rule that's no longer valid, but it will be a very difficult and expensive fight to win. The door is still locked but it will be easier to pry that door open sooner rather than later."
As a storyteller, Dawson is witnessing first-hand the results of the ban on those still obscured by that door. "One story I am following right now is of a trans* guy who has been deployed," she said. "His enlisting paperwork states female and he has been serving for about five years. He is valued in his job enough that the handful of people who are completely aware of his situation are empowering him to continue to serve. But, every day, he risks one person suddenly deciding that there's a problem and he loses everything. He has family that support him and are proud of him. There are other family members who are also serving in the US military and it is shocking to them that one son can serve and another can't simply because of sex assigned at birth."
According to Belkin, President Obama's choice of Ashton Carter as a replacement to outgoing Secretary of Defense Chuck Hagel changes the situation very little, despite Hagel's statement in May 2014 that the ban "continually should be reviewed."
"This policy is owned by the President," Belkin said. "It's not about who is Secretary of Defense, the action is in whether the President of the United States believes in discrimination or in the military core values of integrity for anyone who wants to serve."
