LegiStorm

Summary:

A series of Twitter posts on July, 26, 2017, by President Donald J. Trump is widely being interpreted as a shift in Department of Defense (DOD) policy on service in the Armed Forces by individuals who are transgender, stating After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow...... ....Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming..... ....victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you Background: Policy Evolution Prior to 2016, DOD policy treated the physical and psychological aspects of transgender conditions as (1) grounds for the discharge of existing servicemembers, and (2) a disqualifying condition for new accessions through enlistment or commissioning. However, on June 30, 2016, then-Secretary of Defense Ashton Carter announced that "transgender Americans may serve openly, and they can no longer be discharged or otherwise separated from the military just for being transgender." DOD's concomitant policy issuance (DODI 1300.28), effective October 1, 2016, established a construct by which transgender servicemembers may transition gender while serving, enumerated prerequisites and prescribed procedures for changing a servicemember's gender marker in the Defense Enrollment Eligibility Reporting System (DEERS), and specified medical treatment provisions for Active Component (AC) and Reserve Component (RC) transgender servicemembers. Former Secretary Carter also announced plans to begin to admit transgender recruits by July 1, 2017, stating "the gender identity of an otherwise qualified individual will not bar them from joining the military." However, on June 30, 2017, Secretary of Defense James Mattis announced in a memorandum that DOD would postpone the announced accession policy change for six months and would use this additional time to evaluate more carefully the impact of such accessions on readiness and lethality. This review will include all relevant considerations. My intent is to ensure that I personally have the benefit of the views of the military leadership and of the senior civilian officials that are now arriving in the department. President Trump's tweets indicate that the accession policy changes that would have allowed transgender individuals to join the military are no longer under consideration. The tweets also imply that there will be a change to the 2016 policy allowing transgender members currently in the military to continue to serve. Given this announcement, Congress may wish to consider the potential effects of the policy shift and whether to take legislative action in response. How Will the Policy Affect Those Already Serving? Absent any detailed policy statements, it is unclear whether this new policy would allow or require currently serving members who are transgender to be involuntarily discharged. Pre-2016 separation policies allowed for the discharge of transgender individuals but did not require discharge. The tweets by President Trump may suggest that transgender servicemembers would not be permitted to continue to serve "in any capacity," which could lead to forced separations of existing transgender servicemembers. There is a lack of reliable data on the number of transgender individuals in the military and in the general population. DOD does not collect data on servicemembers who identify as transgender, nor does the U.S. Census Bureau or the Centers for Disease Control and Prevention. Some estimates based on survey data suggest that transgender individuals make up between 0.1% and 0.5% of the total U.S. population. A 2016 RAND study estimated that there are approximately 2,450 transgender personnel in the active component (AC) and 1,510 in the selected reserve–less than 0.2% of the total force. What Is the Cost of Care for Transgender Servicemembers? In President Trump's Twitter announcement, he cited "tremendous medical costs" for the military in allowing transgender members to serve. Some of the medical costs of providing care to transgender individuals may include hormone replacement therapy, counseling, and/or gender reassignment surgery. As costs for treatment vary significantly by individual, there is a broad range of cost estimates for medical services. In a 2016 study, RAND estimated that the annual health care costs to DOD associated with gender-transition treatment for active component members under the Military Health System would be between $2.4 million and $8.4 million. In relative terms, this is a small portion of total DOD direct care expenditures of approximately $17 billion in FY2017. What Are Other Concerns with Transgender Service? President Trump's tweet also referred to "disruption" that the inclusion of transgender members in the military would entail. This may refer to concerns that others have raised about potential impacts on military cohesion, with "good order and discipline," or with challenges to individual units who may have to manage a member who is seeking or considering gender reassignment. There are limited data on the effects of transgender service on unit cohesion or operational effectiveness due to a short history and low incidence of open transgender service in the U.S. and foreign militaries. Existing research from four foreign militaries with policies allowing transgender service generally has shown no significant adverse effects on cohesion. Nevertheless, in these militaries, researchers noted some reports of initial resistance to policy change or hostility toward transgender personnel. "Disruption" may also refer to individual readiness. Medical or surgical treatments for transgender personnel could potentially affect a member's deployability, or availability for worldwide assignments. A 2016 RAND study estimated less than 0.1% of the force would seek transition-related care that could potentially disrupt an individual's ability to deploy. Considerations for Congress Congress has not adopted any legislation with regard to gender identity and the ability to serve on active duty; however, proposals have been raised to prohibit defense spending on medical treatments related to gender transition. Congress may choose to defer or delegate authority to DOD for policies and regulations regarding accession, separation, and health care for transgender servicemembers. Alternatively, Congress may draft legislation to affect such Administration policy, under its authority to make laws governing the Armed Forces. In its oversight role, Congress may decide to initiate further review of policy implications through hearings or studies.