After January 1, transgender recruits can start the process of applying to enlist in the military
But so far the courts have ruled in their favor only on a preliminary basis
Nicolas Talbott, a transgender man, is just days away from his dream: trying to join the military.
“This is a highly emotional time for me. It’s definitely sitting, and hoping and waiting,” he said in an interview Thursday with CNN.
He has good reason to worry.
Last July, President Donald Trump sent a series of tweets announcing that “After consultation with my Generals and military experts, please be advised that the United States will not accept or allow Transgender individuals to serve in any capacity in the U.S. military.” In August, the President followed up with a memo that essentially reversed Obama-era policies.
But the memo was immediately challenged in the courts and so far has been blocked from going into effect – for now. The courts have also declined to put on hold a January 1 deadline that would allow transgender recruits to enlist.
As things stand, after January 1, Talbott can start the process of applying to enlist in the military.
But he knows the legal road ahead could be bumpy. So far, the courts have ruled only on a preliminary basis.
“This whole process with the courts has been a roller coaster,” Talbott said. “We are doing well, but we are not out of the woods yet. I’m trying to stay wary, and I’m definitely nervous that we might hit another setback.”
Talbott’s lawyer, Shannon Minter, the legal director of the National Center for Lesbian Rights, said, “The clock is ticking, and every second we get closer to January 1, individuals like Nicolas whose lifelong dream is to serve our country are getting closer to realizing that dream.”
Lawyers for the government have argued that any appeals to Trump’s August memorandum are premature, in part because the Department of Defense is still reviewing the President’s order and has issued interim guidance that “reaffirms that for now, no current service member will be involuntarily separated, discharged or denied re-enlistment solely on the basis of a gender dysphoria diagnosis or transgender status.”
A 2016 study by the Rand Corp. estimated the number of transgender individuals in the active component of the US military at 1,320 to 6,630, out of about 1.3 million service members.
As for allowing new recruits, the government lawyers argued that the courts’ decision to allow the January 1 deadline to stand “dramatically alters a decades-long status quo, interferes with an ongoing study led by military experts and threatens military readiness.”
But so far, courts have ruled in favor of the challengers.
A three-judge panel for the US Court of Appeals for the District of Columbia Circuit noted in December that transgender people are “already serving openly in the military.”
The court said the government had not shown “that any training or medical demands associated with the accession of transgender troops – all of whom must be medically stable for 18 months before entry (absent a waiver) – are different in kind of degree from the demands associated with the retention of existing troops.”
“In balancing the equities,” the court ruled, “it must be remembered that all plaintiffs seek during this litigation is to serve their nation with honor and dignity, volunteering to face extreme hardships, to endure lengthy deployments and separation from family and friends, and to willingly make the ultimate sacrifice of their lives if necessary to protect the nation, the people of the United States, and the Constitution against all who would attack them.”
A panel of judges on the 4th US Circuit Court of Appeals also refused to delay the January 1 deadline for now. Another challenge is pending in the 9th Circuit Court.
Late Friday night, a DOJ spokesman said that the government would not appeal the New Year’s Day deadline, but would wait instead for the Department of Defense to complete a review.
“The Department of Defense has announced that it will be releasing an independent study of these issues in the coming weeks,” a DOJ spokesperson said in a statement. “So rather than litigate this interim appeal before that occurs, the administration has decided to wait for DOD’s study and will continue to defend the President’s and Secretary of Defense’s lawful authority in district court in the meantime.”
Talbott’s hopes are high.
He said that on Tuesday he plans to call the military recruiter he has been in touch with to schedule an appointment with the Military Entrance Processing Station. There he will have physical evaluations and take tests, the first steps in what he hopes will be his military career.
He said he is wary that down the road his side might lose in courts, but for now he just wants the January 1 deadline to come and go without further delay.