Will waivers help sink Trump’s transgender military ban?
The Daily Beast
May 15, 2020
A trans naval officer has secured the first ever waiver to carry on doing her job. Around 15 others are in the same process, potentially challenging Trump’s trans military ban.
Advocates say the U.S. Navy could be on the verge of ruling on a second waiver sought by a transgender staff member so that they may carry on serving their country.
If granted, it would be the second successful challenge to President Trump’s ban on trans service personnel, after it was revealed this week that the Navy has granted the first ever waiver to a transgender naval officer.
The officer in the first successful case, named in court documents as Lieutenant Jane Doe, has served in the Navy for 10 years.
She is one of a group of trans service personnel who have been forced to seek waivers to continue doing their jobs after Trump’s ban went into effect last year.
The trans service personnel advocacy group Sparta told The Daily Beast that it was aware of around 15 trans service personnel who are currently in the waiver process. A spokesperson said the group believes “there is at least one more request at a level where a decision can be made. It’s also a Navy waiver.” The Daily Beast has reached out to the Navy for comment.
“The significance of this win is that we now have a precedent to help guide others’ waiver packages pending approval from the service secretaries,” Emma Shinn, president and chair of Sparta, told The Daily Beast. “There are still many remaining unknowns, but today we are celebrating the Navy recognizing the value of being able to serve authentically in a person’s correct gender, which will undoubtedly help this naval officer be an even better leader for her sailors.”
“The acting Secretary of the Navy has approved a specific request for exemption related to military service by transgender persons and persons with gender dysphoria,” Navy spokeswoman Lt. Brittany Stephens told CNN.
Stephens told CNN that “this service member requested a waiver to serve in their preferred gender, to include obtaining a gender marker change in (the Defense Enrollment Eligibility Reporting System) and being allowed to adhere to standards associated with their preferred gender, such as uniforms and grooming.”
GLBTQ Legal Advocates & Defenders (GLAD) and the National Center for Lesbian Rights (NCLR) had filed suit in March on behalf of the naval officer who was granted the waiver. The government was due to file its response to the suit next week.
Shannon Minter, NCLR’s legal director, said the officer was declining interview requests and wished to remain anonymous.
“She is obviously relieved,” Minter said. “This has been a time of terrible uncertainty and stress. Having to go through this process has been very taxing. She is very relieved and hopes all goes well going forward. Now she can just get on with her job.”
Minter said that the Navy’s decision marked a significant watershed. “This is the first waiver to be granted, the first waiver on which a yes or no decision has been reached, and also the first trans service member since the ban took effect to bring a lawsuit challenging the application of the ban to her and challenging the need to go through the waiver process,” he said. “In response, the Navy granted her waiver.”
The positive result “certainly underscores the irrationality of this ban,” Minter added. “It doesn’t set a binding legal precedent, but it sets a de facto practical precedent. There is no purpose served by requiring a service member who is fit and equal to serve to go through this exercise having to seek special permission to be treated like everyone else in the military and continue to serve. Does it set a precedent? Look, this whole ban lacks any purpose, rationale, and legitimacy.”
A 2016 RAND Corporation study concluded that there was “little or no impact on unit cohesion, operational effectiveness, or readiness” in countries that allowed open transgender service.
The U.S. military had not revealed the criteria being met, or not, in the waiver process, said Minter. Given that trans service members had already proven themselves as fit and able as their non-trans-counterparts, because they are already serving, it seemed “impossible to imagine a legitimate reason to deny the waivers,” he added.
“It is striking that the waiver petition that was acted upon here was brought by someone who had to sue them, to bring a lawsuit, to protect herself as she underwent this process,” Minter noted. Whether it will lead to other approvals that are not part of a lawsuit is as yet unclear.
“This win provides a glimmer of hope, but there is still much work to do.”
The situation facing transgender service personnel is extremely complicated and dependent on differing personal circumstances—as Lieutenant Jane Doe’s case shows.
Last month, Sparta told The Daily Beast that 1,600 people, all with diagnoses of gender dysphoria predating Trump’s ban, had come out when President Obama lifted the ban on trans service in 2016, and were subsequently “grandfathered” into the armed forces and were able to serve openly.
A second, much larger group of trans people serving is non-exempt from the ban, having not received a diagnosis of gender dysphoria before the policy went into place. (Lieutenant Jane Doe received hers in June 2019, two months after the ban went into effect.) They have been forced to serve in their sex assigned at birth and are not able to access medical care or receive gender-affirming surgery.
Bree Fram, a Sparta spokesperson, said these service members were “hiding their being transgender because of the environment they are in. They have to serve in the shadows.”
Sparta said this group numbers anywhere between 2,000 and 13,000 troops. A more accurate figure is impossible to deduce because the Department of Defense does not keep such data.
The 15 people seeking waivers come from this group. If they are successful, it would mean they are exempt from the ban and can continue in their careers. It also provides a way for them to receive medical care and transition within the military.
“There are many patriotic people—both currently-serving and those wanting to serve—who have been waiting to see how the process unfolds since there is a real possibility of discharge or a complete bar to enlistment and commissioning,” Shinn said. “This win provides a glimmer of hope, but there is still much work to do as we continue to press for open trans service.”
The victory for the trans naval officer does not immediately render Trump’s ban null, but it does provide a significant ray of hope for those seeking waivers and other trans service members serving in the closet, or those wanting to join the armed forces whose applications are frozen because of the ban.
“This waiver approval does not invalidate or challenge the ban,” said Shinn. “However, it does cut against the argument that trans service members negatively impact ‘morale, cohesion, or mission,’ or that we’re somehow not deployable. We continue to serve every day, accomplishing missions and providing value in every branch—from the Marine Corps to the Space Force and everyone in between—and at every major installation, including currently-deployed trans service members in harm’s way.”
The first successful waiver application could “break the logjam,” Minter said, and encourage the granting of the other waivers, even if the entire process seems absurd and unnecessary.
“The only reason trans service personnel have to seek a waiver is because President Trump ordered the ban trans people from military service, even though being trans has no bearing on a person’s fitness to serve,” Minter said. “The waivers are another manifestation of that discriminatory policy. Every other service member who requires some form of medical care receives it. Only if that injury or care prevents from continuing in military service are they excused. Layering on top of that a rule that bans people who require transition-related care serves no purpose. It just excludes trans people who are perfectly fit to serve.”
“We certainly would be more than willing to represent any other trans service members seeking a waiver,” Minter said. “I hope others reach out to us for that purpose. It’s very important that they have representation and some protection as they go through this discriminatory process.”