Transgender troops endure policy rollercoaster

Historically and presently, the military does not permit individuals to serve if they have medical conditions that may excessively limit their ability to deploy. Such persons are thought to pose an increased risk of injury to themselves and others.

Transgender persons suffering from gender dysphoria, a lengthy and marked incongruence between one's biological sex and gender identity, were long considered to have a condition that met these criteria. Thus, until 2016, the Department of Defense (DoD) generally prohibited openly transgender individuals from the United States military.

Since the Obama administration lifted the ban in 2016, policies regarding transgender military service have gone back and forth between permissive and restrictive with each presidential administration. Where the policies will end up is unknown.

Policy under Secretary of Defense Ashton Carter ended ban on openly serving transgender troops

During the administration of President Barack Obama, in July 2015, then Secretary of Defense Ashton Carter convened a working group to study the policy and readiness implications of allowing transgender persons to serve openly in the military. The working group concluded that the Military Health System already provides hormone therapy to many service members, including estrogen for menopausal women, testosterone therapy for men, and to others for a wide variety of needs, such as adrenal or pituitary deficiencies. A later report from a working group member to a federal appeals court states: "Providing similar care for transgender individuals from a pharmaceutical perspective would not be a complicating issue or an additional burden, because the medications transgender service members take are identical to those already provided to non-transgender personnel." [see Karnoski v. Trump, 926 F.3d 1180 (2019).]

Under Secretary Carter, the DoD commissioned the RAND National Defense Research Institute to study the issue of transgender persons serving in the military. The RAND report was issued in 2016. It concluded: "Overall, our study found that the number of U.S. transgender service members who are likely to seek transition-related care is so small that a change in policy will likely have a marginal impact on health care costs and the readiness of the force."

Shortly thereafter, in June 2016, Secretary Carter directed the military and all defense organizations to allow transgender service members to serve openly. The policy stated that "open service by transgender Service members while being subject to the same standards and procedures as other members with regard to their medical fitness for duty, physical fitness, uniform and grooming, deployability, and retention, is consistent with military readiness and strength through diversity." Transgender service members could no longer be separated or discharged solely based on their transgender status. The Carter Policy also authorized the use of DoD resources to fund sex-reassignment surgical procedures.

President Trump's 2017 tweets and memorandum

On July 26, 2017, President Donald Trump began a series of tweets that announced transgender individuals would no longer be allowed to serve in the United States military.

On Aug. 25, 2017, Trump issued a memorandum concerning military service by transgender individuals. In the memorandum, he stated: "In my judgment, the previous Administration failed to identify a sufficient basis to conclude that terminating the Departments' longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources, and there remain meaningful concerns that further study is needed to ensure that continued implementation of last year's policy change would not have those negative effects."

Karnoski v. Trump action filed

Within a month of Trump's August 2017 memorandum, transgender individuals filed an action in federal court in the state of Washington. In Karnoski v. Trump, plaintiffs challenged the policy of discrimination against transgender people regarding military service, alleging several constitutional violations.

On Dec. 11, 2017, the Washington federal court issued a preliminary injunction in the Karnoski v. Trump case. 2017 WL 6311305.

The court found there was a likelihood plaintiffs would succeed on the merits of their equal protection, substantive due process and First Amendment claims. The court enjoined all persons "from taking any action relative to transgender individuals that is inconsistent with the status quo that existed prior to Trump's July 26, 2017 announcement."

Policy change under Secretary of Defense James Mattis

Following the August 2017 presidential memorandum, Defense Secretary James Mattis established a panel of experts serving within the DoD and Department of Homeland Security to provide recommendations regarding Trump's memorandum.

The panel's report to Secretary Mattis stated, in part: "The prior administration largely based its policy on a study prepared by the RAND National Defense Research Institute; however, that study contained significant shortcomings. It referred to limited and heavily caveated data to support its conclusions, glossed over the impacts of healthcare costs, readiness, and unit cohesion, and erroneously relied on the selective experiences of foreign militaries with different operational requirements than our own. In short, this policy issue has proven more complex than the prior administration or RAND assumed."

After receiving the panel's report, Secretary Mattis changed the policy, observing that individuals who suffered from the medical condition of gender dysphoria posed substantial risks, threatened to undermine readiness, disrupted unit cohesion, and imposed an unreasonable burden on the military. Under the Mattis policy, transgender individuals with a history of gender dysphoria were disqualified unless they were clinically stable for 36 months, willing to serve in their birth sex, and had not gender transitioned. The Mattis policy exempted transgender service members diagnosed with gender dysphoria by military medical providers while the Carter policy was in effect, recognizing their reliance on it.

President Trump's 2018 memorandum

On March 23, 2018, Trump issued another memorandum regarding transgender persons in the military. The memo states that "the policies set forth by the Secretary of Defense state that transgender persons with a history or diagnosis of gender dysphoria -- individuals who the policies state may require substantial medical treatment, including medications and surgery -- are disqualified from military service except under certain limited circumstances."

Trump revoked his Aug. 25, 2017 memorandum. In addition, the President ordered that the Secretaries of the DoD and Homeland Security "may exercise their authority to implement any appropriate policies concerning military service by transgender individuals."

The 9^th Circuit ruling in Karnoski v. Trump

On June 14, 2019, the 9^th Circuit Court of Appeals stayed the preliminary injunction in Karnoski v. Trump. The appeals court stated that, regardless of the merits of the 2017 memorandum, the district court had to evaluate the 2018 Mattis policy. 926 F.3d 1180,

President Biden's Executive Order 14004

On Jan. 25, 2021, President Joseph Biden issued Executive Order 14004, stating that "it shall be the policy of the United States to ensure that all transgender individuals who wish to serve in the United States military and can meet the appropriate standards shall be able to do so openly and free from discrimination."

A Jan. 25, 2021 White House press release stated: "America is stronger, at home and around the world, when it is inclusive. The military is no exception."

Then Defense Secretary Lloyd Austin stated that individuals "who wish to serve in the United States military and can meet the appropriate standards shall be able to do so openly and free from discrimination." He added that "the all-volunteer force thrives when it is composed of diverse Americans who can meet the rigorous standards for military service, and an inclusive military strengthens our national security." 

With Biden's 2021 EO allowing transgender persons to openly serve, the Karnoski v. Trump case was effectively ended.

President Trump's second term executive orders       

Shortly after Trump's second inauguration, he issued Executive Order 14148. In it, he stated: "The injection of 'diversity, equity, and inclusion' (DEI) into our institutions has corrupted them by replacing hard work, merit, and equality with a divisive and dangerous preferential hierarchy." That EO also revoked Biden's Executive Order 14004.

That same day, Jan. 20, 2025, Trump also issued Executive Order 14168. That EO stated: "It is the policy of the United States to recognize two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality: . . . (c) . . .every agency and all Federal employees acting in an official capacity on behalf of their agency shall use the term 'sex' and not 'gender' in all applicable Federal policies and documents."

Executive Order 14183 was issued on Jan. 27, 2025. It includes these words: "[T]he Armed Forces have been afflicted with radical gender ideology to appease activists unconcerned with the requirements of military service like physical and mental health, selflessness, and unit cohesion . . . The Armed Forces must adhere to high mental and physical health standards to ensure our military can deploy, fight, and win, including in austere conditions and without the benefit of routine medical treatment or special provisions. . . Beyond the hormonal and surgical medical interventions involved, adoption of a gender identity inconsistent with an individual's sex conflicts with a soldier's commitment to an honorable, truthful, and disciplined lifestyle, even in one's personal life. A man's assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member."

Secretary of Defense Hegseth implemented President Trump's orders

Secretary of Defense Pete Hegseth issued a memo on Feb. 7, 2025, stating: "Effective immediately, all new accessions for individuals with a history of gender dysphoria are paused, and all unscheduled, scheduled or planned medical procedures associated with affirming or facilitating a gender transition for Service members are paused." Then, on Feb. 26, 2025, the DoD issued a memo implementing Trump's EOs eliminating transgender troops from the military.

More lawsuits

On Jan. 28, 2025, Talbott v. Trump was filed in federal court in the District of Columbia by several transgender service members and prospective service members. In the complaint, plaintiffs contend Trump's EO banning transgender people from serving in the military violates the Equal Protection Clause of the Fifth Amendment and is discriminatory.

In their pleadings, the plaintiffs allege the categorical exclusion of transgender people from military service was not based on any legitimate governmental purpose and was issued without any study of the effectiveness of transgender service members and without any assessment of whether their service entailed greater costs.

The federal court in Talbott granted a preliminary injunction on March 18 and denied the government's request to dissolve it on March 26. 2025 WL 842332; 2025 WL 914716. The order included that the defendants are preliminarily enjoined from implementing EO 14183. The United States Court of Appeals for the District of Columbia granted an administrative stay of the Talbott injunction. 

Shilling v. United States was filed in federal court in Seattle on Feb. 6, 2025. The plaintiffs are openly transgender persons who have served in the military and, like Talbot, claim that the transgender military ban violates the Equal Protection Clause of the Fifth Amendment and is discriminatory.

On March 27, 2025, the U.S. District Court for the Western District of Washington issued a nationwide preliminary injunction blocking implementation of the transgender military ban. On April 18, 2025, the 9^th Circuit denied the government's petition to stay the injunction, stating the government did not demonstrate irreparable harm absent a stay. 2025 WL 1145052. But on May 6, 2025, the U.S. Supreme Court stayed the Shilling injunction, pending disposition of the matter in the 9^th Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought." 24A1030

Ireland v. Hegseth was filed on March 17, 2025, in a New Jersey federal court by two men who serve in the Air Force and hope to stay until they retire. As in the other two actions, they allege the transgender ban violates the Equal Protection Clause of the Fifth Amendment.

On March 24, 2025, the New Jersey District Court issued a temporary restraining order: "Defendants . . . are hereby fully enjoined from initiating administrative separation proceedings against Plaintiffs based on their transgender status and are further enjoined from enforcing or implementing any aspect of the Orders as to Plaintiffs." 2025 WL 1084239.

Policy under Secretary of Defense Pete Hegseth to remove transgender troops

On May 8, 2025, Hegseth issued a memo regarding transgender troops. It included these words: "Service members who have a current diagnosis or history of, or exhibit symptoms consistent with, gender dysphoria may elect to separate voluntarily; such Service members may also be eligible for voluntary separation pay. The eligibility window to self-identify for voluntary separation is extended to June 6, 2025, for Active Component Service members and July 7, 2025, for Reserve Component Service members. Additionally, the Military Departments will immediately begin processing for separation Service members who previously self-identified for voluntary separation."

Conclusion

"CBS Mornings" said the Pentagon doesn't have a precise number of transgender troops because there is no requirement for them to self-identify. But estimates indicate there are between 10,000 and 15,000 transgender individuals actively serving. A May 7, 2025, article in the Los Angeles Times reported the recent DoD policies would apply to 4,320 people on active duty.

A 2017 analysis done by the Palm Center, an independent research institute that studied military policy concerning LGBTQ service members, concluded that discharging transgender troops would cost nearly $1 billion. According to both the New York Times and Military Times, the Pentagon released figures showing the military spent roughly $52 million on gender-affirming care between 2015 and 2024.

Retired General Stanley McChrystal, who commanded U.S. forces in Afghanistan, said on the May 16, 2025, episode of "Real Time with Bill Maher" that some in military leadership see service by transgender persons as positive: "What best defends us is everybody."

Now that the nationwide injunctions have been stayed, the discharges of transgender troops have started. We will have to wait and see how law, medicine, politics, and military needs evolve in this unpredictable situation.