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Stop pretending the transgender ban isn’t a ban


President Donald Trump’s ban on transgender military service is set to begin today, almost two years after impulsive presidential tweets set the process in motion. This will happen despite testimony of military service chiefs that transgender service hasn’t been a problem, and despite criticism from former service secretaries and military experts that Pentagon officials have misled Congress about the ban. But the most surprising feature of this new policy that the military hasn’t asked for and doesn’t need may be the Pentagon’s insistence that it’s not a transgender ban. And if it’s not a ban, goes its argument, then it’s not so bad.

The Pentagon relies on hair-splitting distinctions to make its case. It says that transgender troops —the 90 percent who haven’t received grandfathered protection—are welcome to stay in uniform. It says that transgender troops will be safe even if they reveal they are transgender, and even if they are diagnosed with gender dysphoria, a term for discomfort with birth gender. The only price the troops will pay, officials claim, is that they will be denied medical care related to gender transition and must serve in their birth gender. Under this official line, therefore, the approximately 8,000 non-grandfathered troops aren’t really banned from service.

Yet the Pentagon showed its true hand when it released the regulation that would govern the ban. The specifics revealed that the Pentagon was reinstating precisely the same policy—which it concedes was a ban—that was in effect before the open-service era. Buried in the regulation is a return to the rule that makes gender dysphoria a basis for dismissal, exactly as it was before. Commanders will again have complete authority to decide whether discovery of a service member’s transgender identity will lead to separation. The only difference today is an ambiguous direction to soften enforcement of the same disqualification.

While the Pentagon knows how many non-grandfathered transgender troops it has based on surveys, it doesn’t know who they are individually. Commanders, however, have authority to order a mental-health evaluation if they suspect a member is gender dysphoric. Continued service would then depend on whether military authorities believe that an individual is "unable or unwilling" to adhere to standards based on birth sex. Fitness for duty is irrelevant.

In practical terms, this means that if you’re serving in uniform and it becomes known that you are transgender, your commander has authority to start a process that can end in your dismissal. It’s out of your control. Hiding your identity — rather than serving openly as who you are — is the only safe option.

In effect, the Trump policy places at risk all troops who could be diagnosed with a condition that could require treatment associated with gender transition. It’s that breadth and unpredictability that makes it a ban, even if some are able to steer clear of command attention and detection. The supposed freedom to reveal one’s gender identity is meaningless when it can lead to a medical finding that is grounds for dismissal. A transgender service member’s only reasonable approach to career preservation would be to avoid medical or mental-health contacts that could reveal gender identity. The Pentagon obviously can’t ban people it can’t find, but that doesn’t make it any less a ban. Perseverance by transgender troops under difficult conditions also doesn’t make it any less a ban.

If all this sounds familiar, that’s because it’s “don’t ask, don’t tell” all over again. The Pentagon under President Bill Clinton made similar arguments a generation ago that “don’t ask don’t tell” was not a ban but a "compromise" that carved out some protection for gay troops. In fact, the statute enacted was word-for-word the same as the military ban that preceded it. The policy did not change at all, but its political characterization did. The military promised to enforce more gently, to require better evidence before investigating, and to stop "asking" about sexual orientation as a prelude to separation. But the reasons for which gay service members could be discharged remained the same before and after.

This is exactly what the Trump policy is designed to do. It restores the old ban unchanged and offers transgender members only a risky and ultimately hollow choice to reveal information that is once again a basis for separation. Just like “don’t ask don’t tell,” the transgender ban operates by directly targeting the transgender people who can be identified and threatening the rest, forcing them to remain silent and invisible.

The Trump administration has now broken a policy that didn’t need fixing, using a flawed argument that we’ve seen before. In 1993, the New York Times editorialized that “don’t ask don’t tell” was nothing more than a newly repackaged ban that gave “small comfort” to gay troops “while entrenching the archaic and homophobic ban . . . more firmly that ever.” How little we’ve learned in a quarter century.

Diane H. Mazur is professor of law emeritus at the University of Florida, and legal co-director of the Palm Center, an independent research institute that studies LGBT military service. She previously served as an aircraft and munitions maintenance officer in the U.S. Air Force and is author of “A More Perfect Military: How the Constitution Can Make Our Military Stronger.”

Article originally published on POLITICO Magazine

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