Jurisprudence

Biden Repeals Trump’s Trans Troops Ban in Sweeping Executive Order

A person wearing a "Combat Veteran" T-shirt holds a sign that says "Fight the Ban."
Opponents of the trans ban at a rally in D.C. on April 10, 2019. Alex Wong/Getty Images

President Joe Biden repealed Donald Trump’s ban on transgender military service on Monday morning, signing an executive order that eradicates discrimination against transgender people in the armed forces. Biden’s order constitutes a complete reversal of Trump’s anti-trans policies for service members, immediately permitting transgender people to both enlist and serve openly in the military.

Biden promised to repeal Trump’s ban throughout his presidential campaign, and his executive order reflects staunch, unyielding support of transgender troops. It directs the secretaries of Defense and Homeland Security to “immediately prohibit” discrimination against service members on the basis of gender identity, including discharge and denial of reenlistment. It also allows transgender troops who were discharged under discriminatory policies the opportunity to reenlist if they “meet the current entry standards.” Moreover, the secretaries must correct the military records of transgender troops “as necessary to remove an injustice.”

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Crucially, Biden’s order also abolishes Trump’s ban on military enlistment for transgender people—not only his ban on open service for enlisted troops. It fully repeals the executive orders that prohibited trans enlistment, allowing transgender individuals to sign up for service once again. In a statement, Secretary of Defense Lloyd J. Austin confirmed that transgender people may now enlist and serve openly in all branches of the armed forces. The Department of Defense “will immediately take appropriate policy action to ensure individuals who identify as transgender are eligible to enter and serve in their self-identified gender,” Austin wrote. “Prospective recruits may serve in their self-identified gender when they have met the appropriate standards for accession into the military services.” His comments dispel any confusion over the scope of Biden’s policy, which some initially thought might only apply to current service members.

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Monday’s order directs the secretaries of Defense and Homeland Security to give Biden a report on the implementation of these new directives within 60 days. The Pentagon will also soon issue new rules and regulations formally protecting transgender people from discrimination in enlistment and service. But there will be no delay in the implementation of Biden’s order as military leaders craft these new policies. As of Monday, the trans troops ban is officially dead.

This day has been a long time coming. Trump first announced his trans troops ban via Twitter in 2017. By that point, transgender people had been allowed to serve openly in the armed forces for more than a year under a policy instituted by President Barack Obama and his secretary of defense, Ash Carter. Transgender service members were also authorized to receive transition-related care. By one estimate, roughly 15,000 transgender people served in the military under Obama’s policies.

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Trump’s decision to reverse these rules was motivated by the politics of prejudice, and he did not even warn the Pentagon in advance of his tweet. Transgender service had no effect on military readiness or unit cohesion and received widespread support among Americans. Former military leaders condemned the ban, as did congressional Democrats and even some powerful Republicans. The chief of staff of the Army, chief of naval operations, commandant of the Marine Corps, and chief of staff of the Air Force testified before Congress that transgender military service had no deleterious effects. Multiple federal courts swiftly blocked Trump’s policy, decrying it as an irrational, unjustified, and unconscionable violation of equal protection and due process.

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The Trump administration responded by laundering the obvious animus behind the ban. His administration brought in anti-LGBTQ activists to justify the policy, claiming that anti-trans prejudice among some service members provided sufficient grounds to expel transgender troops. Trump even compelled military personnel to lie about the impact of transgender service in an effort to shore up his administration’s arguments in court. The president’s allies also alleged that health care for trans troops was too expensive to continue, though these costs were actually negligible. Federal courts saw through these falsehoods and kept the policy on hold. And beginning on Jan. 1, 2018, transgender people were permitted to enlist in the military thanks to a court order implementing the Obama-era plans.

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Trump’s fortunes turned, though, after Justice Brett Kavanaugh joined the Supreme Court. In January 2019, SCOTUS lifted two court orders blocking the ban, with Kavanaugh casting the decisive vote in a 5–4 decision. Lower courts soon swept away the remaining injunctions, and the ban became law on April 12, 2019. It allowed transgender troops to continue serving openly and to receive medical care, if they came out before the ban took effect. But after April 12, transgender people were no longer allowed to enlist, and transgender service members who sought to transition were discharged. This policy remained in effect until Monday morning.

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Biden’s executive order marks the second time the new president has taken sweeping action to safeguard the rights of LGBTQ people. Last week he directed federal agencies to expand more than 100 civil rights laws to outlaw anti-LGBTQ discrimination in housing, health care, education, immigration, and more. Yet Monday’s order remains vulnerable to reversal at the hands of a future president unless it is enshrined into federal law. Biden must work with Congress if he wants to stop the next Republican president from targeting trans troops for political gain. For now, though, he has made it clear that transgender people are fully welcome in the armed forces as long as he remains commander in chief.

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