A single court injunction is all that's keeping the Pentagon from enacting new policy restrictions on transgender troops serving openly. But new bills introduced in the House and Senate on Thursday would pre-empt the policy and give transgender troops legal protection.
In the Senate, a bipartisan trio of lawmakers including Sens. Kirsten Gillibrand, D-New York; Jack Reed, D-Rhode Island; and Susan Collins, R-Maine, introduced a bill that would prohibit the Defense Department from discharging transgender troops or denying them re-enlistment based on their gender identity. The legislation more broadly states that gender identity alone cannot be the basis of denying an individual enlistment or commission in the military.
In the House, Rep. Jackie Speier, D-California, introduced a parallel bill co-sponsored by Reps. Joseph Kennedy, D-Massachusetts; John Katko, R-New York; Susan Davis, D-California; and Anthony Brown, D-Maryland.
Both bills express a sense of their respective chamber that "individuals who are qualified and can meet the standards to serve in the military should be eligible to serve; and the policies recommended in the memorandum of the Secretary of Defense entitled 'Military Service by Transgender Individuals' and dated February 22, 2018, are inconsistent with this goal."
Then-Defense Secretary Jim Mattis recommended that individuals with a history of diagnosis of "gender dysphoria" be barred from serving due to medical needs and concerns that constitute "considerable risk to military effectiveness and lethality," according to a White House policy memo based on the recommendations.
Mattis also recommended that transgender individuals who have undergone transition surgery, or who require it, be ineligible for service. Transgender individuals currently serving could continue to serve only if they do not require a change of gender and remain deployable, according to the recommendations.
The proposed policy, spurred by a series of tweets by President Donald Trump in July 2017, is a dramatic reversal from that developed by previous Defense Secretary Ash Carter a year before. In June 2016, he ordered all the military services to begin developing their own protocol for allowing transgender troops to serve openly and to obtain medical support as necessary.
Mattis' recommended policy would allow transgender troops who began to serve openly after Carter's announcement to continue serving in their preferred gender.
"Our transgender service members put their lives on the line every day despite an ill-advised edict from the President," Speier, chair of the House Armed Services Military Personnel Subcommittee, said in a release. "This bill makes it clear to our brave transgender troops that we see them and that we honor the risks they take and sacrifices that they and their families make for the safety of our country."
Gillibrand noted that the uniformed service chiefs for the Army, Navy, Air Force and Marine Corps had testified on Capitol Hill that transgender troops currently serving had not had a negative impact on unit cohesion, morale or discipline.
"We should end this discriminatory ban for good and ensure our transgender service members can continue to do their jobs, serve with dignity, and protect our country," she said in a statement. "That's what our legislation would do, and I urge my colleagues in Congress to fight with me to overturn the President's cruel and unnecessary ban, respect the transgender troops who are willing to die for our country, and pass this bipartisan bill now."
The proposed policy that would keep most transgender individuals from serving took a significant step forward Jan. 22 when the Supreme Court decided that it would not take up three cases challenging the ban.
One national injunction against enforcement of the policy remains in effect, connected to a case in Maryland Federal District Court.