Transgender ban not enforced

Pentagon takes no steps to enforce Trump's transgender ban

The Defense Department is awaiting guidance from the White House amid fears that thousands of troops could be forced out.

By BRYAN BENDER and JACQUELINE KLIMAS

The Pentagon is bracing for White House guidance on enforcing President Donald Trump's decision to ban transgender people from the armed forces — orders that military and legal experts say could kick out thousands of troops who just a year ago were told they could serve openly.

The White House indicated Thursday that the president intends to carry out the decision he announced in a series of tweets that, taken at face value, would mean drumming out all service members who identify as transgender.

“The White House will work with the Department of Defense and all of the relevant parties to make sure that we fully implement this policy moving forward and do so in a lawful manner," press secretary Sarah Huckabee Sanders told reporters.

"They are going to have to work out the details," she added.

Ultimately, it will be up to the Pentagon to begin updating its guidelines. But it is unclear whether the troops in question — as many as 15,000 by some estimates — would face honorable or dishonorable discharges if the military indeed forces them out.

A dishonorable discharge would strip them of access to a number of veterans’ benefits, including mental health and educational help.

But even an honorable discharge could be problematic, said Kristofer Goldsmith, president and founder of High Ground Veterans Advocacy, a civic group for military veterans.

When troops were discharged under the so-called "don’t ask, don’t tell" policy — which permitted gays and lesbians to serve only if they kept their sexual orientation secret — the reason for discharge was listed as “homosexual admission” or “homosexual conduct” on the official forms, essentially outing the veterans to potential employers.

Congress and then-President Barack Obama lifted the ban on gays and lesbians serving openly in late 2010.

Goldsmith said it’s unclear if the Trump administration will create a “transgender” separation code that could reveal veterans’ gender identities to future employers and potentially create problems.

“I think that’s very possible,” he said. “Until we receive further guidance from the White House, I’m just going to assume the worst.”

The president said Wednesday in a series of three tweets that transgender troops would no longer be allowed to serve "in any capacity." The announcement sparked fierce criticism from lawmakers in both parties, while advocacy groups immediately threatened to take the president to court to overturn any ban.

In the most dramatic sign of confusion, the chairman of the Joint Chiefs wrote in a message to top military officers on Thursday that there will be “no modifications” to the military’s transgender policy, until the White House drafts a formal request for a policy change.

Marine Gen. Joe Dunford also told the chiefs of the military branches and senior enlisted leaders that the military will continue to “treat all of our personnel with respect.”

“I know there are questions about yesterday's announcement on the transgender policy by the President,” Dunford wrote in the internal communication. “There will be no modifications to the current policy until the President's direction has been received by the Secretary of Defense and the Secretary has issued implementation guidance.”

Dunford's message was seconded later in the day by Defense Secretary Jim Mattis' chief spokeswoman.

"The Department of Defense is awaiting formal guidance from the White House as a follow-up to the Commander-in-Chief's announcement on military service by transgender personnel," Dana White said. "We will provide detailed guidance to the Department in the near future for how this policy change will be implemented.

"The Department will continue to focus on our mission of defending our nation and on-going operations against our foes, while ensuring all servicemembers are treated with respect," she added.

The Pentagon's position underscored how the military, like legal experts, does not consider the president's social media pronouncements to be policy.

In an appearance at the National Press Club, Gen. Mark Milley, the Army chief of staff, said later Thursday that Dunford is “exactly right” and that the military will work through new guidance when it gets a formal directive from the White House through normal channels.

“We grow up and learn to obey the chain of command, and my chain of command is secretary of the Army, secretary of Defense and the president,” Milley said. “We will work through the implementation guidance when we get it. …To my knowledge, the Department of Defense, Secretary Mattis has not received written directives yet.”

Milley also doubled down on Dunford’s message that every service member — “bar none” — should and will always be treated with dignity and respect.

Under “don’t ask, don’t tell,” the military faced criticism for its efforts to find gay and lesbian troops and kick them out of the military. In one example, the Navy tried to kick out a sailor for identifying himself as gay in an AOL directory associated with his personal email account. The sailor sued the military and was ultimately allowed to retire with his full benefits.

Goldsmith also said advocacy groups are worried about a similar effort to locate and remove transgender service members.

“Without any court hearings, without any opportunity to defend themselves, they’re administratively separated. Their entire life could be turned upside down,” Goldsmith said. “The lack of humanity of those tweets makes it seem like the president would not protect people from that type of inquisition. That is extremely disturbing.”

Matt Thorn, the executive director of OutServe-SLDN, an advocacy group for sexual minorities in the military, said that because of the vagueness of Trump’s tweets, the policy could be anything from searching for and kicking out transgender troops to merely blocking new transgender recruits from entering the military.

“There are so many questions,” Thorn said. “It’s unprecedented. DoD has never reversed itself on a major policy like this.”

But Thorn said he believed that Mattis would protect troops from the harshest fate. He cited the secretary’s remarks at his confirmation hearing about not rolling back protections for lesbian, gay, bisexual and transgender military members, as well as his criticism of an amendment from Rep. Vicky Hartzler (R-Mo.) that would have stopped the military from paying for gender reassignment surgery.

“I just don’t see him being vicious on this,” Thorn said. “If he’s forced by the president do to this, I think he’ll be as methodical as possible and will tread very carefully.”

Only a formal directive through the chain of command would lead to a real policy change, said Tobias Wolff, a professor at University of Pennsylvania Law School.

He said Dunford’s statement makes it clear that the Pentagon does not make major changes to its policy because of a tweet — “and he was right to do so.”

“The chairman of the joint chiefs is respecting the rule of law and the role of the secretary of Defense, and he is protecting commanders in the field from having good order and discipline undermined,” Wolff said. “General Dunford should never have been put in this position. It is a reflection of the crisis we now face with this increasingly unstable and reckless individual occupying the presidency.”

Dru Brenner-Beck, a retired Army judge advocate general and president of the National Institute for Military Justice, told POLITICO that under normal procedure the president would issue an executive order instructing the Pentagon to go about changing the department’s personnel policy. But that would occur only after Defense Department officials coordinated with various parts of the military and weighed in on the proposed changes in the draft order.

Brenner-Beck said it’s legally questionable whether a declaration from the president’s personal social media account is enough to launch the process of rewriting Pentagon regulations.

“How do you implement a tweet?” she said. “Usually you would have some kind of an actual policy document that comes down.”

A Defense Department official, speaking on the condition of anonymity, said Thursday that the Pentagon is scrambling to coordinate with the White House for guidance, noting the urgent need to explain to the troops what it means.

Transgender troops — who by some estimates number as much as 15,000 and as few as 1,300 — have been allowed to serve openly since June 2016. The Pentagon has been studying ways to implement the decision for new recruits, including questions about housing and medical care.

Mattis last month ordered that review to be extended another six months.

The Pentagon's policy changes have not been without controversy. House Republicans, as part of defense spending legislation now under consideration, have sought to prohibit the Pentagon from paying for troops' gender transition surgery.

But virtually no one has suggested drumming them out of the military altogether.

"Everyone was confused and I think there are still confused," said Radha Iyengar, a senior economist at the government-funded RAND Corp., who wrote a recent study for the Pentagon on the medical costs associated with transgender service members. "I think the Joint Chiefs statement helps that but we are waiting to see what the actual policy is."