Friends and allies,
Tuesday’s announcement from SCOTUS was a confusing and disappointing reversal in direction from what we’ve seen in the courts so far with regard to 45’s revision of military policy as it pertains to transgender folks in our military.
In 2015 Secretary of Defense, Ashton Carter, convened a Working Group to investigate the issues around transgender troops serving in the military and then recommend a policy regarding inclusion. The group conducted a comprehensive study and concluded that “barring transgender people from military service undermined military effectiveness and readiness.” The group concluded that exclusion of transgender troops would require discharge of qualified individuals causing unexpected vacancies and would also arbitrarily exclude potential qualified recruits. This became known as the Carter Policy. It was announced in June of 2016 and went into effect in 2018. Transgender troops have been serving openly since January of 2018.
A few details about the policy are important. First, it set the standard that transgender troops were to be allowed to serve in their affirmed gender. Second, it designed a specific process by which the medical needs specific to transgender individuals (for example regarding medical transition) would be addressed, additionally setting the standard that medical treatment for transgender individuals was to be handled just like other medical treatments that the military handles for its personnel. And third, the affirmed gender of transgender service people would be accepted and recorded in DEERS, the military’s official enrollment and eligibility reporting system.
On July 26, 2017 45 Tweeted that the US military “will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.” This was a total reversal of a deliberate and thoughtful policy that had been worked on collaboratively by all branches of the military. According to Ray Maybus, the then Secretary of the Navy who represented the Navy in the Working Group, “President Trump's stated rationales for reversing the policy and banning military service by transgender people make no sense. They have no basis in fact and are refuted by the comprehensive analysis of relevant data and information that was carefully, thoroughly and deliberately conducted by the Working Group."
Since 45’s Tweet, four court cases have been making their way through the court system. In general, the courts, up until now, have issued injunctions that have prevented 45’s new policy, known as the Mattis Plan, from moving forward. On Tuesday SCOTUS announced that in two cases (out of 4) they are issuing stays against the injunctions, which means that the legal barriers that were preventing the Mattis plan from moving forward have now been removed in two cases. This is not a clear cut situation. Other injunctions are still in place. But it does indicate that the SCOTUS (in 5-4 voting) believes that 45 should be empowered to enact the Mattis plan, even while the district courts are still working through their decisions.
The Mattis plan, much like Betsy Devos’s refusal to hear cases of sex discrimination from transgender students, represents a significant regression in our public discourse about gender. In both contexts, the administration relies heavily on “biological sex” as a sufficient indication of gender. The assumption the administration makes is that the term “biological sex” can serve as a common sense filter to sort people into two binary categories: male and female. Western Science, however, has known for a long time, that human biology is more complicated than that. For example, most people understand that sex and gender are determined by our genes and humans can either be XX or XY. The fact is, there are humans beings alive today who are XXY, XXX , X (Turner’s syndrome, incidentialy I miscarried a child with this atypical genetic gender variation) and XYY to name a few. The current administration would like the military to be able to sort its personnel by genitalia, but even then we know that the Intersex condition, in which a child is born with ambiguous genitalia is as common as having red hair. These two well known exceptions to a common sense idea of “biological sex” don’t even begin to scratch the surface of the complicated internal external disconnect between the brain, hormones and the body that most transgender individuals experience. The term “biological sex” is an over simplification that serves only to exclude and discriminate against otherwise qualified military personnel.
The science around gender identity, much like the science around climate change, is well agreed upon in western scientific community. The American Psychological Association, the American Academy of Pediatrics, the Endocrine Society and more all agree that the human biology of gender is complex and that human beings fare best when we respect a person’s affirmed gender. To allow our conversation to regress to a narrow, inaccurate definition of “biological sex,” is a major step backward not just for transgender people, but for all human beings who care about accurate representations of science and biology in the public sphere.
If you are interested in reading some of the primary sources about the ban for yourself here are a few links: