New Pentagon handbook adds confusion and frustration for transgender troops, critics say

The DoD released a handbook to help people navigate the effective ban.

October 14, 2020, 6:06 AM

Lt. Col. Bree Fram said her years in the U.S. military have been some of the best of her life, but she hasn't been able to fully appreciate her success because she knows that it's a pleasure other transgender people may never get.

Fram, who came out as transgender in 2016, is an active-duty astronautical engineer in the Air Force, but she said she's spent most of the last 18 months focusing on LGBTQ advocacy in the wake of President Donald Trump's anti-transgender military policy.

The confusion and frustration over the policy only deepened recently when the Department of Defense released a handbook in an effort to help people navigate what critics say is an effective ban on transgender service, but didn't share many details about how trans people can obtain service waivers.

As the vice president of SPARTA, an advocacy and peer-networking group for transgender service members and veterans, Fram said it's hard to fully appreciate the fact that she is one of the so-called lucky ones, who came out under President Barack Obama's pro-transgender policy.

Before the Pentagon's current transgender policy took effect in 2019, transgender troops had been allowed to serve openly since June 2016 when the Obama administration lifted a previous ban.

"I and many others are grandfathered in under the old policy, so it doesn't apply to us, but we are faced with challenges too because we're serving under a commander-in-chief who explicitly told us that we are a burden on the military," Fram told ABC News. "We've had to continue to show up to do our jobs and prove by our action, every day, that reality is something other than that."

What to know about the Pentagon policy

The Pentagon implemented a law restricting the service of transgender troops in 2019, following two years of court challenges. The Defense Department maintains the policy, which largely requires service members and those wishing to join the military to adhere to the standards associated with their biological sex, is not a ban, although it does limit military service of transgender individuals and prohibits current service members from transitioning genders.

Service members diagnosed with gender dysphoria, defined as "a marked incongruence between one's experienced/expressed gender and assigned gender ... associated with clinically significant distress and impairment of functioning," are no longer allowed medical surgeries for gender transition unless they are currently in the process of receiving medical treatment.

And transgender individuals who have received hormones or medical surgery related to their transition are now barred from joining the military, even if they can prove stability in their preferred gender.

The Department of Defense said the policy is focused on "enhancing readiness" and was prepared in consultation with military and medical experts.

"Persons with a history of gender dysphoria — a serious medical condition — and who have undergone certain medical treatment for gender dysphoria, such as cross-sex hormone therapy or sex reassignment surgery, or are unwilling or unable to meet the standards associated with their biological sex, could adversely impact unit readiness and combat effectiveness. For this reason, such persons are presumptively disqualified for service without a waiver," the department said in a statement explaining the policy last year.

It added: "This policy will ensure that the U.S. military maintains the highest standards necessary to achieve maximum readiness, deployability, and lethality to fight and win on the battlefield, DOD officials explained.

Former Defense Secretary Jim Mattis directed development of the new policy, claiming it would ensure that all service members were held to the same standards for deployment and battle. Critics of the policy, including House Speaker Nancy Pelosi, have described it as "discriminatory" and "disgusting" while other lawmakers vowed to continue challenging the rules in court. The department’s change in policy was initially prompted by tweets Trump issued in 2017 that restored the ban on transgender people from serving in the military.

And LGBTQ advocates have protested the policy to no avail and the Trump administration has shown no signs of budging.

At least three transgender U.S. troops have been to subject to processing for involuntary separation and two had been considered for waivers as of February, according to a Pentagon report to Congress obtained by The Hill in July.

In addition to currently serving troops, the report also looks at recruits. According to the report, 19 people were medically disqualified from enlisting or commissioning as an officer based on the administration’s transgender policy: 11 in the Army, seven in the Navy and one in the Air Force. Of those 19, none were considered for a waiver and none ended up enlisting or commissioning, according to the report.

At least 197 service members have been diagnosed with gender dysphoria since the Trump administration's policy took effect: 86 in the Army, 59 in the Navy, 13 in the Marines and 39 in the Air Force, according to the Pentagon report.

Of the service members diagnosed with gender dysphoria, 12 have been referred to the Pentagon’s Disability Evaluation System, which determines whether a service member will return to duty, be discharged for medical reasons or retire, according to the report. Eleven are in the Army and one is in the Navy. Fram said one of the hardest parts of her job is hearing the stories of LGBTQ people who are forced to choose between serving the country or being their authentic selves.

"There are hundreds, or much more likely thousands, of people who are still in the position where they can't come out, so they can't serve authentically like the approximately 1,600 of us that are in the status that I'm in," she said. "We're an endangered species, but they don't even get to be themselves, which is a big deal because not allowing someone to be their authentic selves limits their potential."

A handbook that hasn't been helpful, critics say

The Department of Defense released a new handbook as a reference tool for people impacted by the policy last month.

"Transgender Service members may consult with a military medical provider, receive a diagnosis of gender dysphoria, and receive mental health counseling, but may not obtain a gender marker change or serve in their preferred gender. A Service member may be retained without a waiver provided that a military medical provider determined that gender transition is not medically necessary to protect the health of the individual," the handbook said.

PHOTO: Activists participate in a rally at the Reflecting Pool at the Capitol, April 10, 2019, in Washington, D.C.
Activists participate in a rally at the Reflecting Pool at the Capitol, April 10, 2019, in Washington, D.C.
Alex Wong/Getty Images

"Continued service is contingent on the Service member not seeking gender transition, the Service member being willing and able to serve in his or her biological sex, and the Service member being able to meet applicable deployability requirements."

But LGBTQ advocates said it was geared more toward helping commands approach and implement the policy. It did not provide additional details about how people can obtain waivers for exemption.

The U.S. Navy granted its first waiver in May to allow a transgender sailor, identified in court as Jane Doe, to continue serving despite the policy. The naval officer, who was first diagnosed with gender dysphoria in June 2019, about two months after the police went into effect. had served in uniform for about a decade as a surface warfare officer before being confronted with the likelihood of being discharged under the new rules. Waivers to the policy will be considered “on a case-by-case basis,” according to DoD guidelines.

“This handbook doesn’t change anything. It just explains the policy in more detail for commanders and the transgender service members who are affected by it,” said Peter Perkowski, legal and policy director for the Modern Military Association of America. “And although it explains that there is a waiver available, it says nothing about how you can apply for that waiver, so it’s a very basic tool for the most part.”

The Department of Defense did not immediately respond to ABC News' request for comment.

The Supreme Court has sent mixed messages on issues involving transgender people in the workplace.

For example, the High Court ruled earlier this year that Title VII of the Civil Rights Act extended to gender identity, but most civil rights advocates said it's unclear if the decision will impact the U.S. military -- one of the country's largest employers.

No path forward

Proponents of the transgender military ban argue that the country would save money on medical costs by placing restrictions on transgender service members, but many LGBTQ advocates have disputed that claim.

In a statement at the time Trump announced the policy in June 2017, Pelosi wrote, "A study commissioned by the Department of Defense found that the cost of providing medically necessary transition-related care would be a paltry 2 to 8 million per year -- one-one hundredth of one percent of the military's nearly $50 billion health care budget."

"Many of the arguments are based around cost or non-deployability, but if you take those arguments and say, 'Here's why we can't have trans people,' the next logical step is, 'Here's why we can't have women, because they might get pregnant and when you get pregnant you're not deployable.' And that's a big medical bill for the government, far larger in almost every case than what it is for trans service members," Fram said.

"These arguments have been proven false, but yet history is just repeating itself, even though we can demonstrably prove how wrong the arguments are," she added, referring to the argument that trans people are a financial burden on the Department of Defense.

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