A commentary and resource on Law and Sexuality by Professor Chris Ashford and guests
Noise. The word more than anything else that comes to my mind when thinking about the 45th President of the United States is noise. Donald J Trump appears to emit an endless stream of noise. Such is the frequency of his tweets, gaffs, mis-steps and deliberate attempts to roll back progressive America, the whole thing gets turned into noise. You’re just trying to digest the latest firing, dead cat being slung on the table, racist outburst, media attack, act of stupidity, and along comes The Donald with yet another tweet or batshit rambling speech. When America last had someone who suffered mental illness as ruler, they told George III where to go. They – and the wider world – seem stuck with this guy.
It’s into this mix that the Trump ‘trans ban’ must be viewed. The words are typed, the stories posted and then the world and media move on to the next thing. In doing so, we lose track of the genuine attempts to re-define America that are coming out of the current White House. His Executive Orders have come thick and fast, and when reviewed in one document you get a sense of the direction of travel. I’ll give you a clue, it isn’t forwards. Combine that list with this great New York Magazine piece from last month which captures all the actions Trump has undertaken and you get a clearer picture.
Following a botched an element at a ‘trans ban’ earlier in the Summer, and the predictable LGBT community push-back, Trump issues a memo this week to the Secretary of Defense and the Secretary of Homeland Security. The Presidential Memorandum which begins by setting out he context. It notes that Obama introduced significant changes for trans folks serving in the military in his final few months in Office. It notes:
‘Shortly before President Obama left office, however, his Administration dismantled the Departments’ established framework by permitting transgender individuals to serve openly in the military, authorizing the use of the Departments’ resources to fund sex-reassignment surgical procedures, and permitting accession of such individuals after July 1, 2017. The Secretary of Defense and the Secretary of Homeland Security have since extended the deadline to alter the currently effective accession policy to January 1, 2018, while the Departments continue to study the issue.’
So, here we have three elements. Firstly, that trans individuals can openly serve, secondly, that sex-reassignment procedures are permitted (i.e. you receive medical care just like anyone else serving) and finally, that those who identify as trans can join the military. This final element was not due to come into force until months after he’d left office, and Trump’s regime has already pushed that back to next year. I’m not sure what studying the issue constitutes, but it would be interesting for a journalist to get their hands on this document trail (if it exists).
The memo goes on to argue that the Obama government failed to provide evidence that their change in policy would not ‘hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources’ although Trump fails to provide any evidence that it would do those things. Then we move to the key section of the memorandum, when Trump instructs the two departments (and US Coast Guard):
‘to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016 until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not have the negative effects discussed above.’
In other words, it rolls back the situation to a pre-Obama change situation. For the avoidance of doubt, the memo goes on to state:
‘maintain the currently effective policy regarding accession of transgender individuals into military service beyond January 1, 2018, until such time as the Secretary of Defense, after consulting with the Secretary of Homeland Security, provides a recommendation to the contrary that I find convincing’
Wow, what Trump finds convincing. With no criteria, and a man who flips on a dime from one day to the next. It’s a polite way of saying ‘never’.
Then the memorandum comes on to explicitly address the issue of treatment, effectively stopping any ‘new’ medical and any ongoing treatment beyond the rather vague ‘necessary to protect the health’ requirement. I would have though the effect of stopping any treatment would harm the mental health of any patient and thus I don’t see how – despite the wording of this statement – any health practitioner could allow treatment to be stopped. It will be interesting – horrifying perhaps – to see what happens. The memorandum requires that the departments:
‘halt all use of DoD or DHS resources to fund sex reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.’
What then of those who already serve? Will they be forced out. Firstly, the memorandum is timed to introduce the ban on new trans personnel joining on 1 January 2018 with the other components commencing on March 23 2018. It requires an ‘implementation plan’ be worked up by the departments for the President, stating:
‘By February 21, 2018, the Secretary of Defense, in consultation with the Secretary of Homeland Security, shall submit to me a plan for implementing both the general policy set forth in section 1(b) of this memorandum and the specific directives set forth in section 2 of this memorandum…As part of the implementation plan, the Secretary of Defense, in consultation with the Secretary of Homeland Security, shall determine how to address transgender individuals currently serving in the United States military. Until the Secretary has made that determination, no action may be taken against such individuals under the policy set forth in section 1(b) of this memorandum.’
So, we have the final element. There will be a ban on those currently serving but how that will be actioned hasn’t been thought about. For example, will there be some sort of tribunal process? A right to appeal? How will someone be defined as trans? Will there effectively be a kind of Don’t Ask, Don’t Tell Clinton-esque policy for trans troops? If you tay closeted, will you be OK? If you have undergone medical treatment, will you be treated differently to those who have not?
Beneath the headlines of a trans ban, this is her almighty policy screw-up in the making. Ill-judged and ill-thought out. That’s in addition to the ‘big picture’ which is a hate and prejudice-filled memorandum to the citizens of a country by their own leader. You may have served your nation, you may wear the uniform, vow to protect your fellow citizens and their freedoms but you are less than. You do not deserve those same freedoms. You are unwanted.
Any candidate seeking the office of President of the United States in the months leading up to November 2021 will -and should be- inevitably asked the question: “will you reverse the Trump trans memorandum” but that’s in the distant future. There remains practical battles that will need to be fought in the grey margins of this memorandum. Those of treatment will be critical, so too the criteria for determining who gets kicked out of the armed forces.
It’s hard to listen amidst the Trumpian noise, but listen we must. America is being re-made. Fear, hate and prejudice are the new American dream. It’s an American nightmare.