Military Reports No Discharges Under Trans Ban — but Advocates Have Doubts

More than two years after President Trump tweeted he'd ban transgender people from the U.S. military "in any capacity," the military services say the policy hasn't resulted in denials of service for otherwise qualified individuals — a claim transgender advocates say is dubious at best.

The Washington Blade reached out to each of the military services — the Army, Navy, Air Force, Marine Corps and Coast Guard — to obtain numbers of discharges and denials of enlistment of transgender people since the Defense Department implemented the policy, DTM-19-004, on April 12.

Each of the services — with one exception — had the same reply when asked how many otherwise qualified transgender individuals were denied accession, or enlistment, into their ranks: zero. (The exception was the U.S. Coast Guard, which reported denying enlistment to two applicants under the policy.)

Moreover, each of the services uniformly had the same answer in response to a question about the number of separations under the anti-trans policy: zero.

Stephen Peters, spokesperson for the LGBT group Modern Military Association of America, said the assertion that no transgender applicants were denied enlistment is "incredibly misleading."

"While I'm sure whoever is responding to your inquiry is justifying their response based on semantics, there is no denying that numerous qualified trans patriots want to enlist or commission into the military," Peters said.

As evidence of transgender applicants being denied accession into the military, Peters pointed to his organization's lawsuit against the ban, Karnoski v. Trump, which is pending before a trial court after remand from the U.S. Ninth Circuit Court of Appeals.

Plaintiffs in the lawsuit include Ryan Karnoski, Staff Sergeant Cathrine Schmid and Drew Layne — transgender people blocked under the ban from accession into the military. (Each of these individuals joined the lawsuit before the current policy went into effect on April 12.)

On July 26, 2017, Trump surprised the world, including leadership in the U.S. military, when he announced he'd ban transgender people from the military "in any capacity."

"After consultation with my generals and military experts, please be advised that the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. military," Trump tweeted. "Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail."

Essentially, the tweet announced a reversal of policy allowing transgender people to serve openly and obtain transition-related care without fear of discharge — a policy that was implemented by former Defense Secretary Ashton Carter in the last six months of the Obama administration.

It took nearly two years for the Pentagon to implement Trump's pledge to ban transgender troops. The policy became know as DTM-19-004, "Military Service by Transgender Persons and Persons with Gender Dysphoria."

Why the delay in implementation? Trump tweeted the policy at the same time as former Defense Secretary James Mattis was conducting a six-month study reevaluating transgender service. Following Trump's tweets, the study concluded transgender people should not serve.

Moreover, courts had until the time blocked Trump's policy from going into effect. Earlier this year, the U.S. Supreme Court reversed the orders from the lower courts, essentially allowing the policy to go forward.

Under DTM-19-004, service members are discharged who are diagnosed with gender dysphoria or are prescribed transition-related care. In terms of enlistments, the policy bars applicants with a history of gender dysphoria — unless the individuals are willing to serve in their biological sex (an extremely small number of transgender people). Applicants who obtained transition-related care are outright banned.

The transgender ban contains an exemption that allows transgender people who came out during the Obama-era policy to continue to serve and receive transition-related care. But those troops could face complications under the ban, such as if they seek promotions, want to change services or drop out to pursue educational opportunities and seek to re-enlist.

The Defense Department has insisted the new policy is a medical-based policy applied to every service member, even though the policy applies to conditions faced solely by transgender people, and is not a ban, even though it bars many transgender people from service.

In response to the Blade inquiry, each of the four services under the Defense Department — the Army, Navy, Air Force and Marine Corps — each claimed zero applicants were denied enlistment under DTM-19-004, while the Coast Guard, which is under the jurisdiction of the Department of Homeland Security, claimed two denials.

(Initially, an Army spokesperson responded, "No applicant meeting the medical accession standards contained in DTM 19-004 has been denied entry into the Army under DTM 19-004." When the Blade followed up by asking for the numbers on how many were denied as not meeting the standard, the response was "None.")

Similarly, a Navy spokesperson initially replied, "By policy (DTM 19-004) there can be no denial of accessions based on gender identity alone. Therefore the answer is zero related to gender identity." When the Blade pointed out no mention was made of gender identity, the new response was "zero.")

Aaron Belkin, director of the San Francisco-based Palm Center, said the difference between numbers of the Coast Guard and other services suggests the former views the transgender ban differently.

"The fact that the Coast Guard is reporting the data honestly shows that it is not afraid to acknowledge evidence that indicates what we have long known, which is that the transgender ban harms readiness," Belkin said.

It's possible the number of applicants denied enlistment under the ban don't reflect individuals not just blocked from enlisting under the transgender ban, but due to reasons unrelated to the policy.

Moreover, those numbers don't capture the impact of the policy as a deterrent. At a time when the military is falling short of its recruitment goals, many transgender people may not attempt to enlist even if they would otherwise be interested in military service.

A gay Democratic statistician in New York City, who spoke on condition of anonymity because he's not authorized to talk to the press, said the likelihood the Army denied enlistment to no applicants when the Coast Guard denied enlistment to two is infinitesimally small.

"While it's difficult to say anything with much certainty because we have been given so little data to work with, the odds that a service like the Army that gets nearly 10 times as many applicants as the USCG had zero rejections, while the USCG had two are incredibly low," he said. "Far less than one percent odds."

Belkin said the services reporting no separations is "not surprising" because the process for those separations may not be yet finalized.

"The process for administrative separation set out in DTM-19-004 is efficient but not instantaneous, and it's only been three months since the ban took effect," Belkin said. "Candidates for separation, by definition, would be service members who had not been diagnosed with gender dysphoria by April 12 (otherwise they would be grandfathered). The process for administrative separation could not even begin until diagnosis, followed by another determination that gender-transition treatment was medically necessary."

Belkin added transgender service members may be serving in the shadows like under like "Don't Ask, Don't Tell," the ban on openly gay service repealed during the Obama administration, and avoid seeking transition-related care, which would initiate a discharge.

"Transgender members will avoid medical and health care encounters that could expose them to separation," Belkin said. "Separations are the tiny tip of the iceberg."

The Blade also sought to obtain information on waivers under the trans ban. Under Section 3 of DTM-19-004, the military departments and Coast Guard may grant a waiver to allow a transgender person who would otherwise be blocked from service.

Each of the services uniformly replied they had granted no waivers under the transgender ban, nor had they denied any requests for waivers. The Air Force and the Navy added they have obtained no requests for a waiver to begin with since the implementation of the policy.

Belkin said admission from the services they had not granted any waivers speaks volumes about these waivers being a false promise.

"This rebuts claims from military leadership that availability of waivers will soften the effect of the ban," Belkin said. "In particular, some waivers should have been expected soon after the ban took effect because a number of service members got caught short by the sudden April 12 effective date and the inability to obtain qualifying diagnoses on short notice."

Transgender people who sought diagnoses prior to April 12, Belkin said, would have been obvious candidates for waivers as well as military students in ROTC.

The Blade also asked whether the military services granted any exemptions under Section 1 of the policy, which contains a grandfather clause allowing transgender service members who came out during the Obama administration to continue military service without fear of discharge.

In responses that belie the estimated 14,700 transgender people in the military, including the five who months ago testified before Congress, three of the services reported zero exemptions and one service reported one exemption.

The Coast Guard reported zero, the Air Force said no exemptions were granted or requested and the Army said no in-service exemptions have been granted.

The Navy spokesperson, however, said one exemption "was granted due to when they started the enlistment process."

The Marine Corps declined to answer that inquiry altogether, asserting "we do not track those numbers" because the question is a medical issue and "protected (to an extent) by HIPAA," the federal law providing data privacy for medical information.

Belkin, however, said claims of being unable to provide numbers on exemptions due to concerns about HIPAA are flat-out "wrong."

"For example, the Accession Medical Standards Analysis & Research Activity (AMSARA) writes a report every year tracking the medical status of service members to determine how effectively medical accession standards are screening for fitness," Belkin said.

Belkin added the "we do not track" excuse recalls Mattis' attempt in an exchange with Sen. Kirsten Gillibrand (D-N.Y.) to undercut the testimony by military service chiefs that the inclusive policy has not harmed readiness.

"In short, the ‘we do not track' assertion is false and is used to avoid conceding that inclusive policy worked and that there is no evidence to suggest otherwise," Belkin said.

Meanwhile, the transgender military ban continues to face acts of resistance, including the litigation filed by LGBT legal groups that remains pending in federal court.

Two major universities — the University of Wisconsin Law School and American University — have threatened to ban military recruiters on campus as long they refuse to admit transgender candidates. (If the schools make good on that threat, they would likely face a loss of federal funding under the Solomon Amendment.)

Moreover, transgender advocates praised recent Senate testimony from Vice Adm. Michael Gilday, Trump's pick to become the next chief of naval operations, in which said he transgender service members have had no negative impact on unit cohesion.

"I am unaware of negative impacts on unit or overall Navy readiness as a result of transgender individuals serving in their preferred gender," Gilday said in written responses for his confirmation hearing.

Peters also said transgender people making an attempt to enlist despite the ban is helpful in efforts to dismantle the policy.

"There are also numerous trans patriots who want to enlist, but they are not going through the process because they are well aware the ban is in place," Peters added. "It's no secret the administration has implemented this ban, so they know they would be rejected based on who they are."

This article originally appeared in the Washington Blade and is made available in partnership with the National LGBT Media Association.