Biden under pressure to remove Trump transgender military ban quickly

One of the first military policy changes President-elect Joe Biden is expected to make when he takes office is repealing President Trump’s ban on transgender service members.

During the campaign, Biden indicated that lifting the ban would be a “day one” priority, but it is unclear if he will indeed act on his first day in office or if the issue will have to wait a bit longer.

Either way, transgender troops and their advocates expect the ban to repealed quickly, and they say there is no reason not to act immediately.

“This is something I’ve been waiting a very long time for, so obviously I would love to see this go through as quickly as possible,” said Nicolas Talbott, a transgender man who was in the Army ROTC program at the time the ban took effect and is a plaintiff in one of the lawsuits against the policy.

“When the ban is finally lifted it will be like a giant weight off my shoulders,” he added. “This is something I feel very passionately about not only for myself but for thousands of other people out there just like me who have been waiting for years to finally be able to begin our lives and our careers.”

In a statement marking Transgender Day of Remembrance last week, Biden pledged to transgender and gender nonconforming people that “from the moment I am sworn in as president of the United States, know that my administration will see you, listen to you, and fight for not only your safety but also the dignity and justice you have been denied.”

The statement did not specifically mention the transgender military ban.

Asked about whether Biden will lift the ban on his first day in office, a spokesperson for Biden’s transition team did not directly answer, but said “the president-elect remains steadfastly committed to his plan to advance LGBTQ+ equality, including directing [the Defense Department] to allow transgender service members to serve openly and free from discrimination.”

In February, Biden told LGBT news outlet the Dallas Voice that on “day one of my presidency, I will begin reinstating LGBTQ protections President Trump has rolled back, including ensuring transgender individuals can openly serve in the military.”

That was before several other crises such as the coronavirus pandemic emerged that are expected to occupy Biden’s immediate attention.

But those fighting the transgender ban say they do not expect Biden to put the issue on the backburner despite other emergencies.

“It is so straightforward, at this point, to fix. It’s a fix with the stroke of a pen,” said Jennifer Levi, director of the transgender rights project at GLBTQ Legal Advocates & Defenders, who is co-counsel in two of the lawsuits against the ban. “It’s keeping people who want to serve their country from being able to do so, and so the fact that we are facing a pandemic and a lot of other concerns at this point makes it even that much more important to ensure that people who want to serve their country and who can meet all the criteria to do so are able to.”

The Obama administration, in which Biden was vice president, lifted the previous ban on transgender service in 2016.

But in 2017, Trump tweeted he would reverse the open service policy, saying he would “not accept or allow transgender individuals to serve in any capacity in the U.S. Military.”

In 2018, then-Defense Secretary James Mattis released a policy meant to fulfill Trump’s order that bars most transgender people from serving in the military unless they do so in their biological sex, and in 2019, that policy took effect.

The Trump administration denies the policy is a ban because of some limited exceptions. For example, the policy allows transgender troops and recruits to seek a waiver to serve openly. It also allows those who came out under the Obama administration’s policy to continue serving openly.

The military is only known to have granted one waiver since the policy took effect, and opponents of the policy say the data show it effectively is a ban akin to the defunct “don’t ask, don’t tell” policy that banned open service by gay, lesbian and bisexual service members.

Advocates are pointing to the exception for troops who came out under the Obama administration policy as the reason why Trump’s policy will be easy to remove.

The Pentagon had to keep the Obama administration’s policy framework intact in order to create that exception, according to the Palm Center, which researches issues of gender and sexuality in the military and opposes the ban.

Because of that, open service could be restored within 30 days, the center said in a memo released in July and updated in September.

“Not only is inclusive policy on the books, but the Pentagon is already implementing this policy,” said Aaron Belkin, director of the Palm Center. “So they don’t have to do anything new at all.

Belkin, who was among the outside experts consulted by the Obama administration when it crafted its policy, said members of Biden’s transition team have “seen” the center’s blueprint.

“What I would expect will happen if he lives up to his campaign pledge is he’ll instruct the Defense secretary to implement inclusive policy and then the defense secretary will issue —  actually, it’s not even issuing new regulations. It’s just canceling the Trump regulations,” Belkin said. “President-elect Biden has said he’s going to order the Pentagon to implement new policy on day one, and I have every reason to believe that that’s what he’s gonna do.”

The transition team did not comment on the record when asked by The Hill about the Palm Center’s memo.

Four lawsuits have been filed against the Trump administration’s policy.

Levi, the co-counsel in two of the suits, said she expects the cases would be resolved if Biden reverses the policy since “what we’ve been seeking in the lawsuits is to get rid of the ban.”

Talbott, the plaintiff in one of the lawsuits who said he was “very emotional” when the presidential race was called because he was “thrilled” at Biden’s pledge to reverse the ban, said it is important for Biden to act quickly rather than let the lawsuits play out.

“The longer this ban goes on, the more detrimental it is not only to the lives of the transgender people it’s affecting directly, but to the United States military and national security as a whole,” he said. “There are thousands of qualified, capable, willing people out there who are ready to go in tomorrow and put our lives, put our names on that dotted line stating that we will give up to and including our lives for our country. And every day that we are not able to do that, it’s detrimental to our country as a whole.”