Written by Fall 2022 M-VETS Student Advisor Liz Faris.
Transgender rights have become a divisive political issue, as some lawmakers attempt to restrict access to bathrooms and medical care. Trump swung the spotlight onto transgender servicemembers in 2017 with a series of tweets.[1] Via tweet, the former president banned transgender people from serving in the military.[2] These statements, which were a surprise to his top military advisors, caused widespread outrage.[3] Biden issued an executive order upon taking office to halt the discharge of any transgender servicemembers,[4] but the military has a long way to go to create equality for transgender servicemembers and veterans.
Historically, transgender individuals were banned from military service because “transsexualism” and “change of sex” disqualified applicants from enlisting.[5] Any prior gender-affirming medical history was also disqualifying.[6] Servicemembers that were discovered to have hidden gender-affirming treatment in order to enlist or who displayed gender dysphoria were involuntarily separated.[7] Moreover, servicemembers that did not dress according to their sex at birth, even while off duty, risked criminal charges.[8]
In 2015, the Secretary of Defense prohibited discharging servicemembers for being transgender and, subsequently, allowed open transgender service in 2016.[9] However, in 2017, Trump tweeted that transgender individuals were not permitted to “serve in any capacity in the U.S. military,” attributing the decision to high medical costs.[10] After lawsuits, Trump modified the ban to prevent transgender people from serving except in limited circumstances.[11] This ban included anyone who was currently taking hormones or had already transitioned.[12] Additionally, anyone with untreated gender dysphoria was required to serve in their sex assigned at birth and was denied gender-affirming treatment during service.[13]
In 2021, President Biden revoked this ban and allowed transgender servicemembers to serve openly.[14] Current Department of Defense instructions provide that transgender servicemembers and veterans who receive a diagnosis of gender dysphoria will receive treatment.[15] These treatments include psychological care and hormone therapy, but notably excludes gender-affirming surgeries.[16] In 2021, the Army and Veteran’s Affairs (VA) health services both reported that they would begin to provide these surgeries to transgender individuals.[17] Despite these reports, these changes have not been implemented and TRICARE insurance does not provide gender affirming surgery for veterans, active duty servicemembers, or their family members.[18] Active duty servicemembers may be eligible for gender-affirming surgery only if they are granted a waiver demonstrating that it is medically necessary.[19]
How many people do these policies impact? A 2015 survey indicates that 18% of transgender respondents had served in the military, nearly twice the rate of that U.S. population.[20] Another study from 2014 reported that there were over 15,000 active duty transgender service members and 134,300 transgender veterans.[21] Both of these surveys likely underreport the number of transgender servicemembers, as transgender people were not permitted to serve openly at the time the surveys were conducted. Since transgender visibility has increased and open service has been permitted since 2015, these numbers would probably be even higher today.
Even though the military now allows open service for the thousands of transgender servicemembers, these soldiers continue to face significant discrimination. A 2015 study showed alarming statistics about issues faced by transgender servicemembers and veterans.[22] Almost 20% of transgender veterans separated from the military specifically to avoid discrimination as a transgender person, with higher rates for Black and Latinx transgender veterans.[23] Additionally, 19% of the veteran respondents believed that being trans was either partially or solely the reason for their discharge.[24] These veterans were also less likely to receive honorable discharges.[25] Moreover, transgender veterans also demonstrated highly concerning rates of homelessness (34%), unemployment (10% compared with 4% among other veterans), serious, recent psychological distress (17% compared with 5% in the general population), and suicide attempts (33% of transgender veterans reported attempting suicide in their lifetime and 4% attempted in the past year, compared with 4.6% and .6% in the general population, respectively).[26] A recent study found that 80% of LGBT servicemembers experienced sexual harassment.[27] Although the military policy regarding transgender servicemembers has changed, this policy doesn’t include initiatives to combat discrimination against transgender servicemembers and veterans and the corresponding mental health issues that this discrimination causes.
One key area that transgender rights advocates are concerned about is discrimination in medical care. Trump cited high medical costs as a primary reason for banning transgender servicemembers.[28] Veterans and active duty servicemembers are still denied gender-affirming surgery as part of their covered treatments,[29] likely in part due to concerns about costs. However, the allegedly “high” cost of transgender medical treatment is unsupported by the data. A 2016 report indicated that gender-affirming medical care would likely cost the military an estimated $2.4 million to $8.4 million each year.[30] Even in the most extreme scenario, this would result in an estimated .13% increase in medical costs.[31] To put this into perspective, the military spends 10 times that amount, $84 million annually, solely on erectile dysfunction medication.[32] The cost of providing transgender servicemembers with medical care is “negligible” and amounts to “a thousandth of 1 percent of the Defense Department’s annual budget.”[33] These reports demonstrate that high costs are not a valid reason for denying transgender servicemembers and veterans gender-affirming treatment.
Another erroneous argument for denying gender-affirming surgeries is that it could result in soldiers being unfit for military service for months following the surgery.[34] However, a study found that fewer than .1% of servicemembers “would seek treatments that could delay deployments.”[35] Additionally, as trans-rights advocates argue, gender-affirming surgeries are not cosmetic or “elective” surgeries, but instead are life-saving surgeries that significantly decrease psychological distress and suicidal ideation in many transgender individuals.[36] The military would not prohibit other life-saving surgeries to servicemembers, even if it made them unfit for service, and should not prohibit gender-affirming surgeries.
Some advocates fear that, even though some gender-affirming treatments are available, discrimination will continue to cause transgender servicemembers to be forced out of the military.[37] For example, all servicemembers are required to meet fitness standards.[38] For transgender servicemembers, this fitness standard presents a complication.[39] Once a servicemember changes their gender marker in the system, which allows them to serve in their chosen gender, they are then held to the fitness standards for that gender.[40] One study found that this can present difficulties for transgender males who are taking testosterone, as they perform significantly worse than their cisgender male counterparts for up to three years after starting hormone treatment.[41] The military has yet to allow for variability in these physical fitness standards based on a servicemember’s changing physiology, unless an exception is approved.[42]
Allowing transgender servicemembers to serve openly is a step in the right direction, but it is just that – one step. The military should implement additional measures to ensure that transgender servicemembers and veterans are treated equally to their cisgender counterparts. Namely, they should be provided with a full range of gender-affirming treatments, including surgery, there should be proactive initiatives to combat discrimination, and accommodations should be considered for transgender service members in the process of transitioning. Transgender servicemembers risk their lives, just like any other servicemember. They should not be at a disadvantage because of their gender or because they require medically-necessary treatment. As Navy Chief Petty Officer Melody Stachour stated, “The biggest myth is that we’re something other than an ordinary sailor who is just here to do a job . . . . Trans people in the military are here to do a job. They want to do it well.”[43]
[1] A Brief History of Gay Military Policy and Improving Acceptance, Integration and Health among LGBT Service Members, USC Soc. Work (Aug. 28, 2018), https://dworakpeck.usc.edu/news/brief-history-of-lgbt-military-policy-and-improving-acceptance-integration-and-health-among (hereinafter “A Brief History of Gay Military Policy”).
[2] Id.
[3] Jacob R. Eleazer et al., “We’ve Been Here All Along:” The Collective Resilience of Transgender and Gender Diverse U.S. Service Members, Psych. serv., Nov. 10, 2022, at 2.
[4] Id.
[5] M. Joycelyn Elders et al., Medical Aspects of Transgender Military Service, Armed Forces & Soc’y, March 2014, at 3.
[6] Id.
[7] Id.; Eleazer et al., supra note 3, at 2.
[8] Eleazer et al., supra note 3, at 2.
[9] Id.
[10]A Brief History of Gay Military Policy, supra note 1.
[11] Melissa Gomez, Timeline: Transgender Service Members and the Military, L.A. Times (May 28, 2019, 3:00 AM), https://www.latimes.com/politics/la-na-col1-transgender-military-timeline-20190528-story.html.
[12] Id.
[13] Id.
[14] Eleazer et al., supra note 3, at 2.
[15] U.S. Dep’t of Def., Off. of the Under Sec’y of Def. for Pers.and Readiness, DOD Instruction 1300.28: In-Service Transition For Transgender Service Members (Apr. 30, 2021).
[16] Id.
[17] Steve Beynon, Army to Provide Gender Transition Care, Surgeries for Transgender Soldiers, Military.com (Jun. 28, 2021), https://www.military.com/daily-news/2021/06/28/army-provide-gender-transition-care-surgeries-transgender-soldiers.html; Leo Shane III, VA to Offer Gender Surgery to Transgender Vets for the First Time, Mil. Times (Jun. 19, 2021), https://www.militarytimes.com/veterans/2021/06/19/va-to-offer-gender-surgery-to-transgender-vets-for-the-first-time/.
[18] Leo Shane III, Transgender Veterans Still Waiting On VA’s Promise of Surgery Options, Mil. Times (Jun. 17, 2022), https://www.militarytimes.com/veterans/2022/06/17/transgender-veterans-still-waiting-on-vas-promise-of-surgery-options/; Transgender Health Services, Health.mil, https://www.health.mil/Military-Health-Topics/Health-Readiness/Public-Health/Transgender (last visited Jan. 4, 2022).
[19] Transgender Health Services, supra note 18.
[20] Military Service by Transgender People: Data from the 2015 Transgender Survey, 2015 U.S. Transgender Surv., https://transequality.org/sites/default/files/docs/usts/USTS-VeteransDayReport.pdf (hereinafter “Military Service by Transgender People”).
[21] Transgender Military Service in the United States, UCLA Sch. of L. Williams Inst., https://williamsinstitute.law.ucla.edu/publications/trans-military-service-us/.
[22] Military Service by Transgender People, supra note 20.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Devin Dwyer, ‘I’m Still Here’: Transgender Troops Begin New Era of Open Military Service, ABC News (Feb. 23, 2021, 11:28 PM), https://abcnews.go.com/Politics/im-transgender-troops-begin-era-open-military-service/story?id=76046328.
[28] A Brief History of Gay Military Policy, supra note 1.
[29] Transgender Health Services, supra note 18.
[30] Christopher Ingraham, The Military Spends Five Times as Much on Viagra as it Would on Transgender Troops’ Medical Care, Wash. Post (July 26, 2017, 11:19 AM), https://www.washingtonpost.com/news/wonk/wp/2017/07/26/the-military-spends-five-times-as-much-on-viagra-as-it-would-on-transgender-troops-medical-care/.
[31] Id.
[32] Id.
[33] Id.
[34] Andrew Joseph, Cost of Medical Care for Transgender Service Members Would be Minimal, Studies Show, Sci. Am., https://www.scientificamerican.com/article/cost-of-medical-care-for-transgender-service-members-would-be-minimal-studies-show/ (Jul. 26, 2017).
[35] Id.
[36] Andréa Becker, It’s Time to Stop Describing Lifesaving Health Care as “Elective,” Vox (Sep. 20, 2021, 10:00 AM), https://www.vox.com/22678393/elective-surgery-nonessential-trans-gender-affirming-hysterectomy; Finn Grice, ‘Elective Surgery’: Linguistic Issues with Trans and Non-Binary Care, Nat’l Voices (Dec. 3, 2021), https://www.nationalvoices.org.uk/blogs/%E2%80%98elective-surgery%E2%80%99-linguistic-issues-trans-and-non-binary-care.
[37] Davis Winkie, Army Releases New Transgender Policy, But Can it Prevent Discrimination?, ArmyTimes (Jun. 25, 2021), https://www.armytimes.com/news/pentagon-congress/2021/06/25/army-releases-new-transgender-policy-but-can-it-prevent-discrimination/.
[38] Elvira Chiccarelli, Fit Transitions: When Can Transgender Airmen Fitness Test in Their Affirmed Gender?, Mil. Med. (Oct. 22, 2022), https://academic.oup.com/milmed/advance-article/doi/10.1093/milmed/usac320/6769999.
[39] Id.
[40] Id.
[41] Id.
[42] Id.
[43] Dwyer, supra note 27.