Written by Spring 2025 M-VETS Student Advisor Alexandria Ryan.

History

In 2016 at the end of the Obama Administration, the former Secretary of Defense, Ashton Carter, authorized transgender Servicemembers to openly serve for the first time.[1] But, the policy was short-lived when President Trump took office in 2017, and ordered the Department of Defense (DoD) to exclude transgender individuals from military service.[2] In promulgating the new policy, former Secretary of Defense, James Mattis, directed an expert panel to review the impact of transgender Servicemembers on “military readiness and lethality.”[3] The Mattis Policy incorporated the panel’s recommendations and permitted Servicemembers who were diagnosed with gender dysphoria during military service to continue service if they adhered to their birth sex.[4] It also allowed Servicemembers, who were diagnosed with gender dysphoria while the Carter Policy was in effect, to continue service in their preferred gender.[5] But, those who had already transitioned were disqualified from service.[6] In 2021, former President Biden reversed President Trump’s policy and issued an executive order allowing transgender Servicemembers to serve openly.[7]

Current Policy

This year, President Trump took office and for a second time, placed strict limitations on transgender personnel serving in the military.[8] Accordingly, under Secretary of Defense Pete Hegseth, the DoD issued a policy memorandum generally disqualifying anyone from military service who either has gender dysphoria or has undergone medical interventions to treat gender dysphoria.[9]

Under the Hegseth Policy, Servicemembers who have a current diagnosis, history, or symptoms of gender dysphoria will be administratively separated unless they are granted a waiver.[10] Servicemembers may be considered for a waiver on a case-by-case basis if there is a compelling government interest in retaining them that directly supports warfighting capabilities.[11] The Servicemember must (1) demonstrate that he or she has been stable for 36 consecutive months in the Servicemember’s sex; (2) demonstrate that he or she has never attempted to transition to any other sex; and (3) be willing and able to adhere to all applicable standards.[12]

Servicemembers without a waiver are eligible for referral to the Disability Evaluation System (DES) only if they have a co-morbidity, or other qualifying condition prior to processing for administrative separation.[13] Under the Hegseth Policy, characterization of service will be honorable unless other circumstances justify a lower characterization.[14] In effect, the policy has no impact on characterization of service. Furthermore, all Servicemembers who are involuntarily separated under this policy, are entitled to an administrative separation board or a board of inquiry.[15] Those within two years of retirement from active duty service are eligible for early retirement.[16]

In response to the policy, a group of active-duty transgender Servicemembers, transgender individuals who would like to join the military, and a human rights organization challenged the policy in Shilling v. United States.[17] The plaintiffs requested the federal district court to grant a preliminary injunction preventing the executive branch from enforcing the Hegseth Policy.[18] The district court granted the injunction and the government appealed.[19] Ultimately, the Supreme Court granted a stay of the preliminary injunction on May 6, 2025.[20] Therefore, the DoD may now enforce the Hegseth policy pending the court of appeals disposition.[21]

The lawsuit filed in response to the Mattis Policy demonstrates the uncertainty surrounding the Shilling case.[22] In Karnoski v. Trump, the federal district court granted a preliminary injunction preventing enforcement of the Mattis Policy.[23] The court of appeals found that the district court may have been justified in dissolving the injunction because the Mattis policy had significantly changed the original policy.[24] The parties ultimately agreed to permit enforcement of the Mattis Policy while the case was pending.[25] The district court eventually dismissed Karnoski v. Trump after President Biden took office and revoked the policy at issue.[26] Therefore, Shilling may not be resolved during the Trump administration.

Moving Forward

In light of the fluctuations over the past ten years, there is a chance that the next administration will relax the retention and accession policies for military personnel with gender dysphoria. Thus, veterans separated on the basis of gender dysphoria may be permitted to reenter the military in the future.[27]

If a veteran meets the DoD eligibility requirements, he or she may petition a Discharge Review Board (DRB) to change the character of service, narrative reason for separation, or Reentry Code (RE Code).[28] The DRB is authorized to change the RE code if an applicant’s narrative reason or characterization of discharge is also changed, and that change warrants revision of the previously issued RE Code.[29] But a DRB cannot change the reason for discharge from or to a Physical Disability.[30] Thus, an application to the Board for Correction of Military/Naval Records (BCM/NR) is appropriate if a veteran (1) wants to challenge their disability status, (2) was discharged for a disabling condition and would like to change the narrative reason, or (3) would like to change the RE Code individually without other changes.[31] Military recruiters may also provide an RE Code waiver if authorized at the time of reentry.[32]

Generally, to receive benefits and services from the Department of Veterans Affairs (DVA), the veteran’s character of discharge must be honorable, under honorable conditions, or general.[33] But veterans that receive an undesirable or bad conduct discharge may qualify for a compelling circumstances exception.[34] DVA benefits include disability compensation, health care, education, housing assistance, life insurance, and family member benefits.[35] Moving forward, individuals discharged for gender dysphoria should continue to monitor the policy changes and take advantage of DoD and DVA benefits and services.

[1] Shilling v. United States, No. 25-cv-241-BHS, 2025 U.S. Dist. LEXIS 57869, at *8 (W.D. Wash. Mar. 27, 2025).

[2]Presidential Memorandum for the Sec’y of Def. and the Sec’y of Homeland Sec., Military Service by Transgender Individuals (Aug. 25, 2017), https://trumpwhitehouse.archives.gov/presidential-actions/presidential-memorandum-secretary-defense-secretary-homeland-security/.

[3] Shilling, 2025 U.S. Dist. LEXIS 57869, at *11.

[4] Id. at *10-11.

[5] Karnoski v. Trump, 926 F.3d 1180, 1191 (9th Cir. 2019).

See Shilling, 2025 U.S. Dist. LEXIS 57869, at *11.

[6] Karnoski, 926 F.3d at1199.

[7] Exec. Order No. 14004, 86 Fed. Reg. 7471 (Jan 25, 2021).

[8] Exec. Order No. 14168, 90 Fed. Reg. 8615 (Jan 20, 2025); Exec. Order No. 14183, 90 Fed. Reg. 88757 (Jan. 27, 2025); Shilling, 2025 U.S. Dist. LEXIS 57869 at *4.

[9] Memorandum from the Off. of the Under Sec’y of Def. Pers. and Readiness, Additional Guidance on Prioritizing Military Excellence and Readiness (Feb. 26, 2025); U.S. Dept. of Def., DOD: Gender Dysphoria Incompatible With Military, Service Members Must Serve in Accordance With Sex (Feb. 28, 2025), https://www.defense.gov/News/News-Stories/Article/Article/4086111/dod-gender-dysphoria-incompatible-with-military-service-members-must-serve-in-a/#:~:text=In%20addition%20to%20affecting%20existing,also%20disqualified%20for%20military%20service.

[10] Memorandum from the Off. of the Under Sec’y of Def. Pers. and Readiness, Additional Guidance on Prioritizing Military Excellence and Readiness 4.3(c) (Feb. 26, 2025). See Sec’y of Def. Memorandum,  Prioritizing Military Excellence and Readiness (Feb. 7, 2025).

[11] Memorandum from the Off. of the Under Sec’y of Def. Pers. and Readiness, Additional Guidance of Prioritizing Military Excellence and Readiness 4.3(c) (Feb. 26, 2025).

[12] Id.

[13] Id.

[14] Memorandum from the Off. of the Under Sec’y of Def. Pers. and Readiness, Additional Guidance of Prioritizing Military Excellence and Readiness 4(e) (Feb. 26, 2025).

[15] Memorandum from the Off. of the Under Sec’y of Def. Pers. and Readiness, Additional Guidance of Prioritizing Military Excellence and Readiness 4.4(a)(6)-(7) (Feb. 26, 2025).

[16] Memorandum from the Off. of the Under Sec’y of Def. Pers. and Readiness, Additional Guidance of Prioritizing Military Excellence and Readiness 4.4(a)(8) (Feb. 26, 2025).

[17] Shilling, 2025 U.S. Dist. LEXIS 57869 at *26-28.

[18] Id. at *6-8.

[19] Shilling v. Trump, No. 25-2039, 2025 U.S. App. LEXIS 9437, at *5 (9th Cir. Apr. 18, 2025).

[20] United States v. Shilling, No. 24A1030, 2025 U.S. LEXIS 1831, at *1 (May 6, 2025);

Shilling, 2025 U.S. App. LEXIS 9437 at *5.

[21] Shilling, 2025 U.S. App. LEXIS 9437 at *5.

[22] See id.

[23] Karnoski, 926 F.3d at 1190.

[24] Id. at 1199.

[25] Shilling, 2025 U.S. Dist. LEXIS 57869, at *12.

[26] Order of USCA, No. 2:17-cv-01297, Dkt. 689 (Aug. 31, 2021), https://files.eqcf.org/cases/w-d-wash-217-cv-01297-docket/.

[27] 10 U.S.C. § 1552.

[28] DoDI 1332.28, Discharge Review Board (DRB) Procedures and Standards (Apr. 4. 2004).

[29] See DoDI 1332.28, Discharge Review Board (DRB) Procedures and Standards (Apr. 4. 2004).

[30] Id.

[31] 32 C.F.R. § 723 (2025); DoDD 1332.41, Boards for Correction of Military Records (BCMRs) and Discharge Review Boards (DRBs) (Mar. 8, 2004); Air Force Review Boards Agency, Air Force Board For Correction of Military Records (AFBCMR) (last visited May 15, 2025), https://afrba-portal.cce.af.mil/#board-info/bcmr; Sec’y of the Navy, Board for Correction of Naval Records (last visited May 15, 2025), https://www.secnav.navy.mil/mra/bcnr/Pages/FAQ.aspx.

[32] Army Review Boards Agency, ARBA Case Tracking System Online (last visited May 15, 2025), https://actsonline.army.mil/gui/ContactAnswer82.aspx.

[33] U.S. Dep’t of Veterans Affs., Applying for Benefits and Your Character of Discharge, Veterans Benefits Administration (Apr. 16, 2025), https://www.benefits.va.gov/benefits/character_of_discharge.asp.

[34] Id.

[35] U.S. Dep’t of Veterans Affs., Explore VA benefits and health care (last visited May 15, 2025), https://www.va.gov/.