| Following up on earlierpieces on the Executive Order on Transgender Service, we return to focus on the latest developments affecting transgender service members. Our previous posts explored the role of military lawyers; the misunderstanding of likely military risks and effects on unit cohesion; the treatment of transgender service members, and the equal protection issues raised in the Talbott v. Trump and Shilling v. United States litigation. In this post, we will first update you on the relevant litigation. Second, we will outline the Pentagon’s new guidance on discharging transgender servicemembers and how that process differs substantially from all other discharge cases. We discuss how that difference may bolster animus arguments for equal protection litigation. We also briefly explore how the new guidance relates to uniform policy and how some transgender service members are lawfully highlighting the cruelty of said policies. Finally, we offer a concluding thought as to how the implementation memo may fit within the Administration’s overall approach to restore authority to commanders in contravention of efforts to professionalize the military. | | I. Litigation Update: Talbott, Shilling, and Skrmetti | | When we last wrote, two district courts had issued nationwide stays on the transgender service ban. Since then, the Trump administration petitioned the D.C. Circuit to pause Judge Reyes’ stay in Talbott. One of the circuit court judges stated in oral argument that, “We have a sitting president issuing an executive order that has animus (against transgender people) on its face.” Meanwhile, the Ninth Circuit declined to freeze Judge Settle’s stay in Shilling. The Trump administration then successfully petitioned the Supreme Court 6-3 to pause Judge Settle’s stay pending the Ninth Circuit’s disposition of the appeal and a writ of cert to the Supreme Court if one is sought. Neither justices granting nor those who would have denied provided any reasoning. | | In addition, the Supreme Court decided Skrmetti, an equal protection case challenging a Tennessee statute prohibiting gender affirming care for transgender minors. The Court concluded the statute’s permission for puberty blockers and hormones for some conditions but not for gender dysphoria, gender identity disorder, or gender incongruence made classifications on the basis of medical use. Rational basis review governs such a classification and the statute survived such review. The majority rejected the argument that the statute made a sex-based classification and was thus subject to more searching review. As no minor would be allowed to access puberty blockers or hormones to address gender dysphoria, gender identity disorder, or gender incongruence, it would not be a sex-based classification. In other words, only if boys, but not girls or girls, but not boys were denied access for puberty blockers or hormones for gender dysphoria, gender identity disorder, or gender incongruence would it be a sex-based classification. Nor did the majority conclude that the statute classified on the basis on transgender status. The court reasoned that while no minors could access puberty blockers or hormones for diagnoses that only affect transgender individuals, since all minors, including transgender individuals could seek puberty blockers and hormones for other diagnoses, “there is a 'lack of identity’ between transgender status and the excluded diagnoses.” Thus, the statute would only classify on the basis of transgender status if the limitations on gender dysphoria, gender identity disorder, or gender incongruence were a 'pretext designed to effect invidious discrimination against transgender individuals, the law does not classify on the basis of transgender status. Notably, for our purposes, the Skrmetti plaintiffs did not argue that the statute was motivated by an invidious discriminatory purpose, something the Talbott and Shilling plaintiffs do allege. | | The court also declined to rule on the question of whether Bostock, a Title VII case in which the Court “held that an employer who fires an employee for being gay or transgender violates Title VII’s prohibition on discharging an individual 'because of’ their sex” is applicable to the Equal Protection setting as it concluded “changing a minor’s sex or transgender status does not alter the application” of the Tennessee statute. It then concluded that the statute satisfied rational basis review as Tennessee determined the banned medical treatments “carries risks, including irreversible sterility, increased risk of disease and illness, and adverse psychological consequences” and that “minors lack the maturity to fully understand these consequences, that many individuals have expressed regret for undergoing such treatments as minors, and that the full effects of such treatments may not yet be known.” And that the statute is rationally related to “these findings and the State’s objective of protecting minors’ health and welfare.” | | II. The Pentagon’s Implementation Memo | | In May, the Supreme Court lifted the nationwide injunctions on Trump’s Executive Order and the transgender service ban cases as they continue on the merits. This allows the departments to move forward with removals. They have done so with alacrity. The departments currently provide that those with gender dysphoria may either identify themselves for withdrawal allowing for an honorable discharge and a separation pay-out or be involuntarily discharged without pay. Some of those not taking voluntary removals are seeking an administrative discharge board as described below. | | In the wake of the transgender service ban, the stay on the litigation has forced affected members to make a choice—voluntarily separate or involuntarily separate. For those choosing the later, they appear to face a Pentagon determined to ensure they are separated with no consideration for their prior service or prior achievements. | | The Pentagon recently issued a memo further refining the implementation of the transgender service ban with regards to administrative separation of those currently serving. The departments currently provide that those with gender dysphoria may either voluntarily identify themselves for withdrawal allowing for an honorable discharge and a separation pay-out or be involuntarily discharged without pay. All enlisted members eligible for involuntary separation may request an administrative separation board. The memo outlines four important details regarding these boards. | - all service members attending such hearings must do so in conformity with their birth sex uniform and grooming standards. No deviations from this are permitted and should the service member conform instead with their current identity’s grooming and uniform standards, they will be treated as in absentia and the board may “as appropriate take the Service member’s failure to comply with standards into consideration when determining whether the basis for separation has been established.”
- mirroring a prior Air Force directive, the separation boards may only make findings as to a “diagnosis, history of or exhibits symptoms consistent with gender dysphoria.” If the finding is affirmative, they must make a finding that the service member should be separated.
- the separation authority (i.e. commander) can either approve or disapprove of the determination.
- service members may apply for a waiver if (a) the separation authority disapproves of the board’s determination of no gender dysphoria issues or (b) when the board and separation authority agree gender dysphoria issues exist.
| | III. Transgender Discharge Boards Differ from All Others | | Discharge boards are quasi-legal proceedings that are relatively common amongst the military departments. Acting under the Department of Defense’s directive, each military department will establish what conduct forms a basis for discharge, what members are entitled to a hearing, and how much due process to afford a member within that hearing. Generally, officers are entitled to boards of inquiry and enlisted members are entitled to discharge boards depending on the extent of their service, the seriousness of the alleged misconduct, or what type of discharge characterization the command recommends. For example, an enlisted member with only a couple of years of service whose command recommends discharge with an “Under Honorable Conditions” discharge for minor misconduct is likely not entitled to a board; whereas an enlisted member with more than six years of service or recommended for discharge due to serious misconduct is likely entitled to a discharge board. | | While some exceptions exist, discharge boards generally seek to resolve three questions: (1) is there a basis for discharge; (2) even if there is a basis for discharge, should the member be discharged; and (3) what type of discharge characterization the member should receive—honorable, under honorable conditions, or under other than honorable conditions. The second question serves a special function in discharge boards. The member can argue that even if the board finds there to be a basis—ultimately making the finding that the member did engage in the conduct underlying the discharge—she can still be retained. This option allows the member to enter into evidence her entire military record, arguing that her continued retention is in the best interests of the military department. | | On one hand, the Pentagon’s implementation of the transgender ban ensures that members have a certain amount of due process. The memo guarantees all members, whether officers or enlisted and regardless of service time, have the right to challenge their discharge before a board. It also provides them the right to have counsel present, to have an attorney serve as the legal advisor (who acts as the quasi-judge in discharge boards), and that the government recorders (who act as the quasi-prosecutor) receive sufficient training to respect the legal integrity of the proceedings. Perhaps most significantly, the memo also ensures that members may only receive an honorable discharge characterization if the board recommends their discharge, absent some other misconduct. Notably this differs from discharge options under both Don’t Ask Don’t Tell and the Biden-era Covid vaccination mandate. Such a discharge status avoids the collateral consequences, such as the stigma and legal status, of more negative discharges. To take just two examples, honorable discharge is necessary to access GI Education Bill benefits, and employers in most states may ask about and make employment decisions based on discharge status. | | On the other hand, we believe the memo raises significant fairness concerns in spite of the process afforded to affected members. Significantly, the memo does away with the second question traditionally asked and answered in board proceedings—whether the member should be discharged. Instead, the memo requires that the board resolve only one question—does the member “have a current diagnosis or history of, or exhibits symptoms consistent with, gender dysphoria, or has a history of cross-ex hormone therapy or a history of sex reassignment or genital reconstruction surgery as treatment of gender dysphoria or in pursuit of sex transition.” If the answer is yes, then the board must recommend discharge. | | The exclusion of the second question matters deeply. In practice, it prevents the service member from introducing any evidence about their military record or her service. It prevents them from showing that they have served honorably or even heroically, despite meeting the basis for discharge prescribed by the Pentagon, and that their continued service is in the best interests of the military department. Consider how a board is likely to function in the absence of such a question. The government is likely to introduce some medical document that establishes the member has a diagnosis of gender dysphoria or exhibits symptoms consistent, with gender dysphoria. In turn, the only legal defense from the member would be to challenge the medical document or the diagnosis; however, such a legal defense also may amount to a denial of the member’s identity and an untruth inconsistent with a service-member’s commitment to honesty and integrity as well as their sworn oath to tell the truth during the proceeding. The member is left in an ethical and legal quagmire—do I deny my gender identity and engage in dishonesty for the sake of serving or do I admit my gender identity and know that by doing so, I provide all the evidence the government needs to discharge me? No matter how the member answers that question, they know that their service and merit are no defense and the board is unable to consider those. | | We recognize that other discharge memos have mandated discharge upon a finding that the underlying misconduct has occurred. Nonetheless, we highlight that even in those cases, the member generally has some ability to present evidence at the board hearing considering their prior service. Take drug abuse for example. The departments mandate separation for drug abuse when a board reaches a finding that the member engaged in drug abuse. For those discharge boards, though, the member may argue that they meet the retention criteria. A part of the retention criteria is that their retention is in the best interests of the department, again allowing the member to introduce evidence of their entire military record. Even under “Don’t Ask, Don’t Tell,” the Pentagon required separation when a member disclosed they were gay or lesbian or bisexual or engaged in same-sex sexual conduct, but also allowed the member to present evidence that retention was appropriate, based in part, on their continued service being consistent with the best interests of the military in proper discipline, good order, and the morale of the service. | | For transgender members discharged under this memo, their only chance for retention once the government establishes the basis for discharge is a retention process that occurs outside of the board hearing and after the board has made its findings. These members may submit a waiver request to the separation authority within 15 days of their board. The waiver request must be in writing and must meet the stringent requirements of showing that there is a compelling government interest in retention, that they can demonstrate 36 consecutive months of stability in their assigned sex without significant distress or impairment, that they have never attempted to transition, and that they are willing and able to adhere to all sex-based standards associated with their assigned sex. | | The fact that such a retention process occurs outside of the discharge hearing suggests a disingenuousness to the actual granting of a waiver, especially considering that one department has already provided the board hearings will not be recorded. The decision that a waiver is not warranted will be done outside the presence of the member, without access to the board transcript, without legal representation, and without the ability of the member to confront evidence presented against them or to argue evidence presented by them. For what it is worth, we are currently unaware of any waiver approvals. In some ways, this extra-hearing process resembles the Biden-era Covid policy, where the Pentagon mandated separation for members refusing the Covid vaccine, while allowing for a religious exemption adjudicated outside discharge board proceedings. The current administration has frequently targeted these Covid discharges as unfair and inappropriate, going as far as overturning the policy and reinstating members discharged under it. The same primary concern—disingenuous retention criteria—pervades the transgender discharge memo. | | We think the distinct treatment of transgender members before discharge boards might provide further evidence to support an equal protection claim against the Department of Defense. As we discussed previously, the judiciary tends to give broad deference to the Pentagon, especially when it comes to matters of military personnel. While the Supreme Court left open the question as to whether laws that discriminate against transgender individuals should be subject to intermediate scrutiny or rational basis review, we are skeptical about the current Court finding transgender individuals to be a quasi-suspect class. We think it more likely that, given Skrmetti, they find no discrimination at all using similar reasoning or they affirmatively reject the extension of quasi suspect classification. Just as the Court concluded in Geduldig v. Aiello, that exclusion of pregnancy-related conditions from insurance coverage did not discriminate on the basis of sex because not all women are or will become pregnant and concluded in Skrmetti that the exclusion of gender affirming care did not exclude on the basis of gender because not all transgender youth seek the impermissible gender affirming care, it might also conclude that the transgender service ban does not exclude on the basis of gender as transgender individuals who do not “have a current diagnosis or history of, or exhibits symptoms consistent with, gender dysphoria, or has a history of cross-ex hormone therapy or a history of sex reassignment or genital reconstruction surgery as treatment of gender dysphoria or in pursuit of sex transition” and are able to comply with uniform, pronoun, and salutation conventions may continue to serve. That subset of transgender servicemembers is not a null set and ergo, under the Court’s past reasoning, not discrimination on the basis of gender. | | A showing of animus, however, on part of the Pentagon, serves to break down that deference and allows the judiciary to more closely examine the government’s conduct and justification for its actions. As mentioned above, the Supreme Court highlighted in Skrmetti the continued existence of such a path in appropriate cases. We suggest that the departure from traditional board processes might bolster the initial evidence of animus regarding the language from the Executive Order. Precluding transgender members from an opportunity to demonstrate to the board that no legitimate government interest exists in excluding them while others, including illegal drug users, a group the military very much disfavors, do get that opportunity is suggestive of a discharge process motivated by cruelty, hostility, and prejudice. | | The emphasis on forcing transgender service members to wear the uniform assigned to their biological birth sex is another aspect of the discharge process that deserves attention. The wearing of the military uniform is special and unique. It’s a visual display of the member’s rank, of her deployments, of her awards, of her assignments. The military member earns not only the right to wear the uniform, but the right to wear every component of it. While standing alone, for reasons explained in prior posts and the discussion of Skrmetti above, the Supreme Court is unlikely to find this as constituting discrimination or subject to intermediate scrutiny, we find it cruel and think that cruelty ought to be noted. While one might defend the requirement that members wear the uniform of their assigned birth gender to their board hearings to be part of the relevant evidence to be considered or a necessary precondition to ongoing compliance with the Executive Order, it is not only those who elect the board process who are subject to those requirements. Transgender servicemembers who chose early retirement run the risk of disciplinary action if they wear the uniform matching their identity. This led Coast Guard Captain Trey Wirth to retire in civilian clothes with their chosen uniform, on a stand, next to them and publicizing the images. And it is worth noting that in implementing the executive order, the Air Force also chose to deny early retirement benefits to otherwise eligible service members with 15-18 years of service and rescinded the approvals that had already been granted under a prior May 23 memo. Even those who neither retire nor challenge their separation, but simply voluntarily separate, they too must wear uniforms that do not conform to their lived identities to their outprocessing appointments. For those transgender members who cannot and will not wear the uniform of their assigned gender, the Pentagon again denies them the recognition and display of their prior service. | | IV. A Return to Commander-Centric Approach to the Military | | Lastly, we wanted to make a quick observation about another striking aspect of the implementation memo. For transgender service members, and transgender service members only as far as we are aware, the commander must make approve or disapprove of the board’s finding in order move the process forward. Part of the traditional justification for the administrative boards was to provide independence from and a safety valve for discharge processes which were either initiated by or wholly conducted by commanders. Inserting them into the process is reminiscent of commander’s prior authority to approve or disapprove of court martial sentences. The move away from commander approval, along with the Biden-era adoption of the Office of Special Trial Counsel brought military justice closer to civilian justice and in the parlance of its advocates civilianize the military justice process—emphasizing justice over military. But the Second Term Trump administration has focused on returning authority to the commander. From complaints about restrictive rules of engagement, to the firing of the TJAGs and otherwise undercutting the role of JAGs in legally questionable operations like the military attacks on drug boats, we might also view this memo as not only as about transgender service members, but about a greater willingness to expand or restore commander authority. While the Second Trump Pentagon has largely avoided military justice reform, perhaps the return to the commander-centric approach here foreshadows looming and significant efforts to scale back the civilianization of military justice. | | The views expressed in this post are those of the authors and not of the Department of Defense or any military department. |
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