Lawsuit Against SecDef Dropped After Transgender Sailor Gets Waiver to Serve

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Defense Secretary Mark Esper testifies
Defense Secretary Mark Esper testifies to the Senate Armed Services Committee about the budget, Wednesday, March 4, 2020, on Capitol Hill in Washington. (AP Photo/Jacquelyn Martin)

The Navy has issued a waiver allowing a transgender lieutenant to continue to serve openly as a woman, despite a military policy that could have resulted in her discharge.

In return for the waiver, advocacy groups backing the lieutenant, identified only as Jane Doe, agreed June 5 to the dismissal of a civil suit. The suit had been filed in U.S. District Court in Massachusetts against Defense Secretary Mark Esper, challenging the military's current transgender policy.

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However, other lawsuits seeking to overturn the policy as discriminatory will continue, according to GLBTQ Legal Advocates & Defenders (GLAD) and the National Center for Lesbian Rights (NCLR).

The waiver is believed to be the first exemption to the transgender policy granted by the military, although several others are pending, Shannon Minter, national legal director of NCLR, told Military.com.

The lieutenant had served as a male for nearly 10 years on active duty in surface warfare but identified as female, Minter said.

The waiver will allow the lieutenant to serve openly as a woman and begin the physical transition to female, Minter added. The lieutenant will also be listed as female in the Defense Enrollment Eligibility Reporting System.

"A number of others have asked for waivers, [but] there are no clear guidelines" in the military for seeking them, Minter said.

The Navy did not give any reasons for granting the waiver, Minter said. A Navy spokeswoman responded that “Acting Secretary of the Navy James E. McPherson reviewed requests on an individual basis, considering the unique facts and circumstances of each case.”

Under then-Defense Secretary Ashton Carter, the Obama administration changed policy to allow transgender individuals to serve openly.

The policy began to change again in July 2017 when President Donald Trump posted a series of tweets announcing: "After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military."

The new rules went fully into effect in April 2019 and state that transgender personnel cannot be recruited or serve in uniform if they have been diagnosed with gender dysphoria -- a conflict between one's biological sex and gender identity -- or have yet to transition to an identified gender.

Policy waivers will be considered "on a case-by-case basis," according to Defense Department guidelines.

In statements announcing the dismissal of the civil suit, Jennifer Levi, Transgender Rights Project director for GLAD, said, "Our client is relieved that she will be able to continue her service without fear of discharge.

"While it is frustrating that it took a lawsuit to make it happen, her top priority is to continue using her skills and training to serve her country in the career to which she has dedicated nearly a decade of her life," Levi added.

"The transgender military ban is irrational and harmful," Minter said. "The granting of one single waiver does nothing to change that."

-- Richard Sisk can be reached at Richard.Sisk@Military.com.

Related: Navy Grants First Service Waiver to Transgender Officer

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