Pentagon to allow transgender people to enlist in military

3rd judge blocks military transgender ban; Local attorney says that may not last

By Kent Justice - Anchor/reporter, Lolita C. Baldor, Associated Press

Transgender recruits will be allowed to enlist in the military beginning Jan. 1, the Pentagon said Monday, as President Donald Trump's ordered ban suffered another legal setback.

The new policy reflects the difficult hurdles the federal government would have to cross to enforce Trump's demand earlier this year to bar transgender individuals from the military.

Two federal courts already have ruled against the ban and on Monday a federal court judge denied a government request to set aside the January start date for enlistment.

Randy Reep, a practicing attorney in Jacksonville, has served more than 28 years and is currently in the Air National Guard. He said Monday's ruling may not last.

"It is discrimination," Reep said. "One, is a transgender person a protected class? More importantly, every decision the military makes for their applicants is based on discrimination."

Reep said the latest step in the on-again, off-again ban for transgender people won't be the last -- something that the White House confirmed.

"As of right now, they're simply complying with a court order and preparing to implement a previous policy to remain in compliance. The Department of Justice is currently reviewing the legal options to ensure that the President's directive can be implemented," White House press secretary Sarah Sanders said.

Critics object that the President may offer those directives through posts on social media. Reep said that’s not necessarily a legal defense against his stand.

"The delivery method is unique to his style, but how the President gives his orders to his subordinates, that's his decision to make. He is the chief executive. He gets to make that call on how he does that," Reep said. 

The call on keeping transgender people from joining the military may come down to the argument Reep believes could win in court -- one of “readiness” for armed forces. 

"One example is that this can cause somewhere between $4 million and $8 million dollars on the Department of Defense budget might suggest that's not a very significant portion, about 0.1 percent of the budget," Reep said. "But the reality is -- if you're making the decision between gender reassignment surgeries paid for by the Department of Defense for service members, you're making that distinction -- then you could be negatively impacting the readiness of our servicemen and women."

In October, U.S. District Judge Colleen Kollar-Kotelly barred the Trump administration from proceeding with its plan to exclude transgender people from military service. Part of the effect of the ruling was that the military would be required to allow transgender people to enlist beginning Jan. 1.

The government had asked Kollar-Kotelly to put the Jan. 1 date on hold while they appealed her full ruling, but she declined Monday, reaffirming the Jan. 1 start date. Department of Justice spokeswoman Lauren Ehrsam said Monday evening that the department will ask a federal appeals court to put on hold the Jan. 1 requirement "as we evaluate next steps."

Potential transgender recruits will have to overcome a lengthy and strict set of physical, medical and mental conditions that could make it difficult for them to join the armed services.

Maj. David Eastburn, a Pentagon spokesman, said the enlistment of transgender recruits will begin next month and proceed amid legal battles. The Defense Department also is doing a review, which is expected to carry into 2018.

Eastburn told The Associated Press on Monday that the new guidelines mean the Pentagon can disqualify potential recruits with gender dysphoria, a history of medical treatments associated with gender transition and those who underwent reconstruction. But such recruits are allowed in if a medical provider certifies they've been clinically stable in the preferred sex for 18 months and are free of significant distress or impairment in social, occupational or other important areas.

Transgender individuals receiving hormone therapy must be stable on their medication for 18 months.

The requirements make it challenging for a transgender recruit to pass. But they mirror concerns President Barack Obama's administration laid out when the Pentagon initially lifted its ban on transgender service last year.

"Due to the complexity of this new medical standard, trained medical officers will perform a medical prescreen of transgender applicants for military service who otherwise meet all applicable applicant standards," Eastburn said.

Aaron Belkin, director of the California-based Palm Center, an independent institute that has conducted research on sexual minorities in the military, said the 18-month timeline is fair.

"It's a good standard because the Pentagon is treating gender dysphoria according to the same standards that are applied to all medical conditions," he said.

However, Elaine Donnelly, president for the Center For Military readiness, said Trump "has every right to review, revise, or repeal his predecessor's military transgender policies, which would detract from mission readiness and combat lethality." Court judges, she said, are not qualified to run the military.

The Pentagon move Monday signals the growing sense within the government that authorities are likely to lose the legal fight.

"The controversy will not be about whether you allow transgender enlistees, it's going to be on what terms," said Brad Carson, who was deeply involved in the last administration's decisions. "That's really where the controversy will lie."

Carson worried, however, that the Defense Department could opt to comply with a deadline on allowing transgender recruits, but "under such onerous terms that practically, there will be none." Carson, who worked for Carter as the acting undersecretary of defense for personnel, said requiring 18 months of stability in the preferred sex is a reasonable time.

"It doesn't have any basis in science," he said, noting that experts have suggested six months is enough. "But as a compromise among competing interests and perhaps to err on the side of caution, 18 months was what people came around to. And that's a reasonable position and defensible."

Sarah McBride, spokeswoman for Human Rights Campaign, praised the court's ruling, saying that it affirms "there is simply no legitimate reason to forbid willing and able transgender Americans from serving their country."


Associated Press Writer Jessica Gresko in Washington contributed to this report.

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