By | June 17, 2020

BY JEFF LAKE

There has been a significant development concerning the ban on military service by transgender individuals implemented by the military at the direction of the President.

As discussed previously, in March, 2019, the military published a memorandum with instructions to carry out the transgender ban.  This memorandum specifically prohibited transgender service members from “serv[ing] in their preferred gender.”  The ban went into effect on April 12, 2019.  However, the ban exempted those currently serving from discharge and also allowed for discretionary waivers to be granted by each branch of the military.

Lt. Jane Doe was commissioned as a naval officer in 2010. She has served nearly 10 years in the navy and is committed to serve through 2026.  She is the primary support for her family – which includes her spouse and two young children. In June, 2019, a military medical provider diagnosed Lt. Doe with gender dysphoria. As this diagnosis came two months after the transgender ban went into effect, Lt. Doe was immediately subject to discharge if she attempted to serve in her preferred gender.  

After disclosing her diagnosis to her commanding officer, Lt. Doe requested a discretionary waiver in October, 2019.  The Department of Defense has not provided any guidance as to the proper form or content for such a request.  The DoD has also not provided any guidance on the criteria by which a waiver request will be evaluated or a timeframe in which it is to be adjudicated.

Given the complete lack of information concerning waivers, Lt. Doe filed suit in Federal Court in Massachusetts on March 17, 2020 for declaratory and injunctive relief which would allow her to continue to serve in the military and receive appropriate medical treatment. Represented by GLBTQ Legal Advocates and Defenders and the National Center for Lesbian Rights, the complaint alleged violations of the Equal Protection and Due Process clauses of the Fifth Amendment.  A copy of the complaint can be found here: https://notransmilitaryban.org/wpcontent/uploads/2020/03/ECF1_Complaint.pdf

It is well worth reading.

On May 14, 2020, the military granted Lt. Doe’s request for a waiver.  This is the first waiver granted in the year since the transgender ban has been in effect.  As there has been no guidance, it is unclear why the military has granted the waiver. Shannon Minter, NCLR Legal Director, stated, “While we are relieved for our client, requiring transgender service members to jump through this discriminatory hoop makes no sense and only underscores the irrationality of the ban.  Being transgender has nothing to do with a person’s fitness to serve, and transgender individuals should be held to the same standards as other service members.”

On June 5, 2020, the lawsuit was dismissed.  Lieutenant Doe will now be listed as female in the Defense Enrollment Eligibility Reporting System.

The MLTF will continue to follow developments concerning the transgender ban, including whether additional waivers will be granted.  As always, be sure to subscribe to On Watch to get updates. Jeff Lake is the chair of the Military Law Task Force.  He is in private practice in San Jose, California.