When President Donald Trump signed the Prioritizing Military Excellence Order, questions arose as to whether it would be a complete transgender service ban or a variation of the Don’t Ask, Don’t Tell regime. In this post, we explain why the Administration’s actions are best characterized as a cousin of Don’t Ask, Don’t Tell that we tentatively characterize as Do Ask, Do Exit or Mask. We discuss who automatically qualifies for separation and who might face the choice of separation or masking as well as articulating the harms of such a regime on them. We also identify broader concerns such as possible trans baiting; the declining role and influence of military lawyers; the mismatch of Secretary of Defense Hegseth’s warrior ethos and the kind of service members needed for modern conflicts; and the new leadership’s flawed conception of unit cohesion.
I. Content of the DOD Guidance
The February 26 Department of Defense memorandum provides supplementary guidance on the Prioritizing Military Excellence and Readiness Executive Order. It does three things with regards to currently employed service members we wish to discuss.
First, the memo provides direction on who must be separated and articulates the existence of a narrow waiver for those who would otherwise be excluded. The retention portion of the memo targets those who “have a current diagnosis or history of, or exhibit symptoms consistent with, gender dysphoria” as well as those “who have a history of cross-sex hormone therapy or a history of sex reassignment or genital reconstruction surgery as treatment for gender dysphoria or in pursuit of a sex transition.”.” For those service members who meet these criteria, the memo gives them the option to voluntarily separate, incentivized by assurances of an honorable discharge, voluntary separation pay, and promises that the military departments will not recoup any bonuses. Should these service members who meet the criteria for gender dysphoria choose not to self-identify and voluntarily separate, the memo provides that they will be involuntarily separated, with the right to appear before an administrative discharge board (or a Board of Inquiry for officers). Military branches are to “establish procedures and implement steps to identify” relevant service members and initiate relevant discharge proceedings.
Second, the memo reiterates that all service members must abide by those fitness standards, grooming and uniform standards, usage of intimate spaces like bathrooms, showers, and sleeping facilities, and pronouns that reflect one’s immutable biological sex assigned at birth. In other words, transgender service members who do not suffer from gender dysphoria and are not otherwise separated must maintain a work identity consistent with their birth sex. So, for example, a trans man must use women’s facilities, comply with women’s uniform and grooming regulations, satisfy women’s fitness standards, employ she/her pronouns, and accept a salutation of Ma’am.
Third, the memo declares that no DoD funds may be used for “medical procedures associated with sex reassignment surgery, genital reconstruction surgery as treatment for gender dysphoria, or newly initiated cross-sex hormone therapy.” Previously scheduled but not yet performed surgeries are canceled.
A. Who is Out?
We think the memo conceives of two groups of transgender service members who will be separated—those who voluntarily separate and those who are involuntarily separated. To take advantage of the benefits of the voluntary separation window outlined in the memo, service members must claim and their commander and their doctor must verify a finding of gender dysphoria. The military defines gender dysphoria as “a marked incongruence between one’s experienced or expressed gender and assigned gender of at least 6 months’ duration, as manifested by conditions associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning.” For those service members with a gender dysphoria diagnosis who do not voluntarily separate, the memo requires them to be involuntarily separated. The memo does not provide detail as to how the military will identify such individuals, whether their medical records can be accessed, or whether accusations can trigger a separation proceeding.
In addition, policy guidance allows some service members who have a current gender dysphoria diagnosis or “a history of cross-sex hormone therapy or a history of sex reassignment or genital reconstruction surgery as a treatment for gender dysphoria or in pursuit of a sex transition” and therefore must be separated—whether voluntarily or involuntarily—to apply for a waiver. The waiver is to be granted only when (a) “a compelling Government interest in retaining the Service member that directly supports warfighting capabilities” exists and (b) the service member demonstrates “36 consecutive months of stability in the Service member’s sex without clinically significant distress or impairment in social, occupational, or other important areas of functioning; and the service member demonstrates that he or she has never attempted to transition to any sex other than their sex; and “is willing and able to adhere to all applicable standards, including the standards associated with the service member’s sex.” The government-issued executive order FAQs clarify that individuals diagnosed with gender dysphoria as a child are disqualified for service, but are eligible to be considered for a waiver. We must confess we found the waiver eligibility standards and the service branch interpretations difficult to parse as explained below. To the extent that some service members are eligible and apply for such a waiver, we flag this as a source of possible contestation, particularly if the military grants no waivers. Think, for example, of the service members who filed suit for the alleged blanket denials of COVID-19 vaccine waivers. The government ultimately settled that suit rather than reach the merits. That said, several meaningful differences between the two situations. First, the service members affected by COVID-19 vaccine waiver denials tethered the alleged illegality of their denials to the Religious Freedom Restoration Act. We are not sure if any similar legislative or administrative hook exists for service members denied a waiver here. Second, the burden on the transgender service member to show a compelling interest that directly supports warfighting capabilities might fairly be interpreted as a hard-to-satisfy standard. Third, those service members discharged under this memo appear to be entitled to board hearings, unlike, we believe—though we are happy to be corrected—those denied religious waivers for the COVID-19 vaccine mandates. So, as discussed below, the contestation might happen largely in the boards rather than court.
In addition, the memorandum also disrupts health care for some service members. It cancels all surgeries associated with facilitating sex reassignment for service members diagnosed with gender dysphoria. Somewhat surprisingly, it permits the continuance of cross-sex hormone therapy if recommended by a health care provider. That said, such therapy would end when separation is concluded. We predict some service members would be unable to quickly access insurance coverage for or self-fund relevant gender-affirming care post-separation. Ending hormone therapy can cause meaningful hormonal and emotional adjustments. In addition, those who go through coerced de-transitioning can experience a loss of sense of autonomy, self, anxiety, depression, dysphoria, and grief. And as they are experiencing this unwanted adjustment, they will simultaneously be uprooted from their military community and employment. We worry that some meaningful set of those separated, with or without health care disruption, will experience anxiety, depression, and suicidal ideation.
B. Who may be in (the trans closet)
For transgender individuals who have not been diagnosed with dysphoria, have not physically transitioned, have not taken hormone therapy, and do not have any symptoms of or can successfully conceal symptoms consistent with gender dysphoria, they may, in practice remain in service. Of the estimated between 8,000 and 16,000 transgender troops, senior defense officials believe doctors have diagnosed approximately 4,200 service members with gender dysphoria. That leaves estimates of between 4,000 to 12,000 transgender service members who might be eligible to remain, provided they are willing to comply with requirements related to gender identity and biological sex such as grooming and uniform standards, bathroom and other intimate space restrictions, physical testing, and pronoun usage as dictated by the administration. They must also protect against receiving a gender dysphoria diagnosis, which would then trigger their mandatory separation. Many individuals will thus have to choose between their felt identity and service. For those who elect service, such individuals will have to mask or closet their felt gender identity. They will also have to do so without the option of receiving adequate mental health care, since such health care could likely trigger their involuntary separation. We think it important to highlight those individual and service harms that will stem from such masking, similar to those experienced under Don’t Ask, Don’t Tell.
First, masking one’s gender identity can cause serious mental, emotional and physical consequences. The American Psychological Association has linked identity masking with increases in anxiety, stress, and depression. The formal rules, likely amplified by a warrior ethos we think designed to disparage transgender identity, can be expected to cause which results from “the chronic experience of social stigmas, discrimination, and prejudice.” In turn, that stress may manifest itself in both short-term health disturbances and chronic health problems like heart disease and obesity. While not all transgender individuals experience masking the same, we anticipate some will suffer cognitive dissonance, lowered self-esteem, and isolation all of which can manifest in significant emotional distress. In turn, the emotional weight of concealment can also lead some to substance abuse and suicidal ideation. And, of course, given the prohibition on trans service, masking service people may fairly feel unable to seek out psychological help.
Second, we predict harassment and sexual assault will increase as a result of this policy. We have already seen what happens when a vulnerable population must mask its identity in the military. Under Don’t Ask, Don’t Tell, service members targeted (mostly) women and (some, particularly gender non-conforming) men with questions, insinuations, and jokes. Some were, in fact, lesbian, gay or bisexual. Some were not. All suffered. While the Prioritizing Military Excellence Executive Order already forces members to conform to their birth sex in grooming, pronoun, and intimate space usage, the pressure exerted by other service members may force trans as well as other gender non-conforming service members to go beyond what is legally required to satisfy the policy and to hyper conform with the traditional gendered expectations for their birth sex. In more serious cases, such targeting could rise to the level of workplace harassment, as understood by Title VII after Bostock. Even if Article 134 of the Uniform Code of Military Justice prohibiting sexual harassment encompasses gender identity harassment moving forward (or such harassing behavior is in some instances implicitly covered under Article 93’s prohibition on maltreatment or other relevant articles), we think many JAGs are unlikely to pursue and many commanders and/or court martial panels are unlikely to punish such behavior, particularly in the wake of the Executive Order. What was colloquially known as lesbian baiting left its targets ripe for additional sexual aggression as perpetrators attempted to confirm their assumptions with sexual assaults. We can imagine similar behavior arising under Do Ask, Do Mask. We also know that under Don’t Ask, Don’t Tell, some service members used the threat of outing, whether true or not, to deter survivors from reporting sexual harassment and sexual assaults.
While one might hope that the difference between 1994 and 2025, including the #MeToo movement; the open service of gay, lesbian, bisexual, and for a time transgender soldiers; and significant military education and reform on sexual harassment and sexual assault, would portend a better outcome for a masking regime, we are deeply skeptical. Between the tenor of the current administration as to transgender individuals, the leadership of the military by an alleged harasser and assaulter, the chilling of the JAGs, and the possible changes to sexual assault prevention and reporting training, optimism is not warranted here. To zoom out a bit, Secretary Pete Hegseth continues to espouse a commitment to a “warrior ethos” that rests upon an assumption that military members must meet a white, male, cisgender ideal. Implicit with this ethos is a rejection of diversity, equity, and inclusion, a belief that the military frequently falsely accuses male members of sexual assault, assertions that women cannot serve in combat, and a high tolerance and sympathy for members accused of committing war crimes. Secretary Hegseth’s recent action of designating his personal attorney, who has made a career of opposing military efforts to hold members who have been alleged to have committed sexual assault or war crimes, as a judge advocate and assigning him to the Office of the Secretary of Defense, suggests further commitment to this definition of a “warrior ethos.”
II. Broader Societal and Legal Impacts
The impact the ban and its implementation will have on transgender members—whether they self-identify and voluntarily separate or decline to self-identify but are “outed” and involuntarily separated or mask to avoid a formal diagnosis and remain in their birth gender—is substantial. We believe those consequences alone are enough to question the fairness and morality of the ban and to also support judicial determination that such actions are guided by animus and not by any military necessity. Nonetheless, the ban also speaks to broader legal and societal consequences that we also feel are worthy of discussion.
A. Concerns about military lawyers and the role of law within military departments
First, the ban and its implementation speak to broader concerns about military lawyers and the role of law within the military departments. Following the recent firings of the department Judge Advocate Generals (“TJAGs), we and several others discussed concerns that such firings would chill candid and independent legal advice. Some commentators pushed back on this narrative, arguing that the current TJAGs deserved to be fired. However, the speed and haste of these directives, and their implementation by the departments, suggest that military lawyers are not actively engaged in reviewing or considering them, which calls into question the current role of military attorneys.
While Secretary Hegseth alleged that prior TJAGs were “roadblocks” to administration actions, this characterization overstated the role of TJAGs and judge advocates. Judge advocates have broad statutory authority to advise, but very little authority to decide. Military commanders at all levels are always free to disregard the advice of their judge advocate. Rather than a roadblock, judge advocates often serve as a “speedbump,” for commanders and senior leaders. Their counsel should slow down the decision-making process to ensure the decision-maker is aware of the legal consequences and risks associated with her proposed actions. From there, an effective judge advocate would help devise a legal way to achieve commander preferences and assist in the drafting of the implementation, supporting compliance and clarity.
The implementation memo suggests lawyers had minimal, if any role, in drafting or reviewing it. Litigation challenging the initial ban is actively pending and yet the administration still initiated the ban with celerity and without considering or controlling for the substantive claims against its lawfulness. Beyond the speed of its release, the memo lacks clarity on how transgender members who have a diagnosis of gender dysphoria and who do not self-identify will be selected for involuntary separation. We believe it is a reasonable assumption that the military departments will conduct a review of private medical and mental health records (for care received both inside and outside of the Department of Defense) to identify these members, but the memo does not provide any guidance on how such a review will be conducted consistently with legal privacy and privilege protections. Further, the memo has several inconsistencies and ambiguities. It seems to suggest that members who have treated their gender dysphoria through surgery or hormone treatment may be eligible for a retention waiver, yet to be eligible for a retention waiver, the member must never have attempted to transition. The memo also establishes living within one’s birth gender for 36 months as a retention criterion. But must they have done so before applying for a waiver? Or do they receive a 36-month probationary period? The memo does not provide such guidance and supports marginalization or disregard of effective military attorneys.
B. The misunderstanding of modern warfare and national security threats
Second, the ban and its justifications raise concerns over how this administration envisions and understands modern warfare and the potential national security threats facing the United States. As discussed earlier, Secretary Hegseth continuously refers to reestablishing a “warrior ethos.” This ethos represents a very limited view of warfare: of white, strong, fit, cisgender men engaging in ground warfare through head-to-head combat. In turn, the administration envisions a military where all “warfighters” are prepared and ready to fight this type of war. To the administration, transgender members cannot meet this requirement, not only because they lack the “commitment to an honorable, truthful, and disciplined lifestyle,” but also because they would be unable to receive their gender-affirming care while deployed and fighting this type of war.
We should be concerned by the administration’s belief that wars in the future will be in any way traditional wars of head-to-head ground combat. The administration has posited that China and the potential of peer-to-peer combat with China represents the greatest national security threat to the United States. At times, the administration also suggests that Russia remains a national security threat, although the administration appears to be increasingly aligning themselves with Russia. Assuming the administration is right about the threats of peer-to-peer conflict, a conflict with either Russia or China is unlikely to be a traditional war. It’s hard to imagine a scenario where the American infantry engages with the Chinese infantry outside of Beijing or one where American special forces are conducting operations in Hong Kong. Any conflict with a peer nation, especially China, is much more likely to involve multiple traditional and untraditional components, such as space assets, cyber capabilities, air operations, artificial intelligence utilization, drone strikes, and naval supremacy. If we are prepared for traditional head-to-head conflicts comparable to World War I or II and fail to prepare for these non-traditional conflicts, our national security will pay the price.
To be prepared for these types of conflict, service members need not look or act like Pete Hegseth or the traditional white, cisgender male warrior stereotype. Additionally, they will likely not engage in head-to-head combat in remote parts of the world. For these warfighters operating on airbases or in cyber or space commands, they will continue to have access to their gender-affirming care, while also fighting the wars that reflect future conflict. And even for those warfighters who do still need to forward deploy, the reality is they can still access their gender-affirming care. One of us deployed to Parwan Province, Afghanistan, outside the perimeter of Bagram, for six months. Before leaving, the Air Force prescribed 180 days’ worth of anti-malaria medication, which easily fit in an Air Force-issued backpack along with other gear. This medication could have easily been replaced by estrogen, testosterone, or an antiandrogen (not to mention also making a trip onto Bagram to receive the required annual Air Force flu shot).
C. Misunderstanding Unit Cohesion
Additionally, the administration’s warfighting posture fails to adequately capture the essence of unit cohesion or the “band of brotherhood,” essential to operational success. The idea of unit cohesion is ancient, with Plutarch praising Pelopidas as a military leader for understanding that “a band cemented by friendship, grounded upon love is never to be broken, and invincible; since the lovers, ashamed to be base in sight of their beloved, and the beloved before their lovers, willingly rush into danger for the relief of one another.” It’s a common refrain of military veterans, and the personal experience of one of us, that bonds formed in military service and in war are difficult to replicate or understand. These bonds, though, are not built upon race, political ideology, gender identity, or sexuality, but rather commitment to the mission and putting in the work to accomplish the mission. Everything else becomes secondary.
History supports these personal experiences. Prior to integration, opponents warned that allowing black service members to serve with whites would destroy unit cohesion. Critics of women serving continue to also argue female members restrict unit cohesion. Opponents of allowing gay members to serve—even under the restrictive and discriminatory “don’t ask, don’t tell” policy—offered similar arguments and suggested it would destroy unit cohesion to the point of rendering the United States a second-class military. And of course, the first Trump administration made the same arguments regarding allowing transgender members to serve. History, though, also tells us when all these groups were allowed to serve, military cohesion flourished, and the oppressed groups served successfully. But the success of these efforts started at the top, with civilian and military leadership ultimately falling in line, supporting the efforts, providing sufficient training to all members, rewarding success, and then punishing members who undermined unit cohesion.
The transgender ban disregards this history of unit cohesion and instead undermines it. Ultimately, the ban condones service members separating themselves from other service members and “transvestigating,” their peers. When coupled with the continued rise of extremism within the military ranks, the ban rewards division, encourages the “asking” of whether a member is transgender, and the threats of “outing.” These impacts will only serve to weaken the “bonds of brotherhood” essential to unit success and mission accomplishment.
III. Some Solutions
The ban and its implementation place transgender military members in a nearly impossible situation. We acknowledge the difficulties in placing any more responsibility or any extra burden on transgender members in finding solutions. Allyship at all levels of military and civilian leadership is essential in alleviating some of these pressures. However, the best mechanism to oppose the ban, and to deter future bans, is judicial and will require transgender members to continue leading the efforts for their right to serve.
Litigation is already pending in civilian courts across the country to challenge the ban. In the Talbott v. Trump litigation over the constitutionality of the Executive Order, Judge Reyes scheduled a hearing to account for the DoD and service branches implementation guidance. But efforts to fight the ban should not end there. While the ban and implementing memo strongly encourage eligible members to self-identify and voluntarily separate, there is risk in doing so. For example, members involuntarily separated under “Don’t Ask, Don’t Tell,” have been involved in litigation against the Department of Defense for years over their wrongful separation. In January, the Department of Justice reached a settlement with this class of discharged members that included providing service upgrades and back pay. Transgender members should pay heed to this settlement as a voluntary separation would likely preclude them from seeking civil damages in the future.
For those who refuse voluntary separation, the members involuntarily separated should strongly consider electing for discharge boards, to the extent they are comfortable doing so. Through administrative discharge boards, transgender members will be able to basically litigate the policy and its rationale, exposing the strength and commitment of their military service and the fallacy that gender dysphoria alone makes someone incapable of serving their country.
Finally, though, state governors can provide some relief. The National Guard and the Air National Guard are not mentioned in the transgender ban. This exclusion is because guard units, except when activated onto federal service, fall solely under the command and supervision of the state governor, as limited by the state constitution and the state legislature. 21 states have filed amicus briefs on behalf of plaintiffs in the Shilling v. Trump case, opposing the transgender ban. These state governors can and should encourage transgender members to continue serving in their states and invite transgender members to serve in their guard units. Although these members will not receive federal recognition, they will be able to serve within their states and contribute to the state guard missions. Such service will not only give transgender members the ability to still serve, but it will undermine the administration’s assertions that gender dysphoria is inherently inconsistent with military service.
The views expressed in this post are those of the authors and not of the Department of Defense or any military department.
