July 27, 2017
Trump’s Transgender Ban Raises Legal Questions
Is a tweet legally binding directive, asks former US Secretary of the Army Eric Fanning
By Rachel Ansley
US President Donald J. Trump’s decision to ban transgender troops from the US military via tweet raises “a question of legality,” and widespread concerns regarding the implementation of this sweeping order, according to former US Secretary of the Army Eric Fanning.
“The question is,” said Fanning, “is a tweet from the president a legally binding directive?” Ultimately, “It remains to be seen what this really means and how they plan on implementing it,” he said. “When the president tweets major policy pronouncements, we don’t know.”
On July 26, Trump tweeted a ban on transgender people serving in the US military “in any capacity.”
“That’s a part of the tweet that’s much more sweeping than anybody expected in a worst-case scenario,” said Fanning. “Transgender [individuals] serving in uniform now are all nervous,” he added.
Fanning, who serves as a member of the Atlantic Council’s LGBTI Advisory Council, said he is “disappointed” by Trump’s decision “because there are thousands of transgender Americans, patriotic Americans, serving in uniform today, and they show us every day that being transgender is not a barrier to service, that gender identity is not a barrier to service.”
Trump’s tweet overturns former US President Barack Obama’s decision to lift the ban on transgender troops in July 2016, allowing all transgender men and women currently serving in uniform to serve openly.
While US Secretary of Defense James Mattis said in his confirmation hearing the transgender troops can serve, he delayed the implementation of Obama’s decision to accept the enlistment of transgender troops by six months.
Obama’s Secretary of Defense Ashton B. Carter allowed the military one year from the time the ban was lifted to integrate medical guidelines that would accommodate transgender service members. Trump’s announcement was made the day before that deadline expired.
Trump cited “tremendous” medical costs for transgender troops and the associated “disruption” as hindrances to a military which must remain focused on “decisive and overwhelming victory.” However, according to Fanning, it is Trump’s decision that “will be disruptive.”
“I haven’t seen anything that backs up allegations that charges are going to be as expensive as they say,” said Fanning, adding: “All the evidence I’ve seen points to the contrary.” A RAND Corporation study concluded that, at most, healthcare costs for active-duty transgender soldiers would increase military spending by 0.13 percent.
Ultimately, “this decision will have a negative impact on readiness,” according to Fanning. “I think it’s the wrong decision.”
This tweet comes on the heels of a proposed amendment to the annual defense budget, recently defeated in the US House of Representatives, which would have blocked the Pentagon from funding gender therapy treatments to active-duty soldiers. Twenty-four Republicans voted against the amendment.
While support for transgender troops in the military is not a bipartisan issue, said Fanning, “people rallied instantly.” Trump’s recent pronouncement has received widespread backlash from both sides of the aisle in Congress. Notably, US Senator John McCain (R-AZ) said: “There is no reason to force service members who are able to fight, train, and deploy to leave the military—regardless of their gender identity.”
Fanning expressed his optimistic outlook on the issue in light of the widespread pushback, saying: “I have a sense… we’re going to come out of this with a lot more awareness and a lot more vocal support, not only from activists, from allies, but maybe from people who hadn’t thought about it before, who hadn’t talked about it before.”
Eric Fanning joined the New Atlanticist’s Rachel Ansley for a phone interview. Here are excerpts from our interview.
Q: Trump made the announcement banning transgender individuals from enlisting in the US military via tweet, but what happens next? How will the ban be implemented?
Fanning: You’d have to ask a lawyer. The question is: is a tweet from the president a legally binding directive? The transgender policy we have in effect now was put into place by Secretary Carter, so you’d expect that any change to it would come from Secretary Mattis. Certainly, the president has higher authority, but there is a question of the legality of it coming in the form of a tweet. In terms of how you implement it, there are two parts to this. Who is allowed to come in to the military? Then, what requirements are necessary when you’re inside the military? Frankly, that’s a part of the tweet that’s much more sweeping than anybody expected in a worst-case scenario. There are a lot of questions here. The timing is interesting because the Pentagon was supposed to issue updated medical guidelines tomorrow.
Q: What is your reaction to Trump’s decision?
Fanning: Disappointed, because there are thousands of transgender Americans, patriotic Americans, serving in uniform today, and they show us every day that being transgender is not a barrier to service, that gender identity is not a barrier to service. I was disappointed by what this says to the thousands of Americans who are serving with distinction today. I am also disappointed because I think it’s the wrong decision. The arguments you hear against transgender service are the same we heard about opening combat positions to women, about “don’t ask, don’t tell,” about integrating the military sixty-nine years ago today. Each time, we were told that it would destroy readiness, destroy good order and discipline, wreck morale, and we saw that that wasn’t true. The same is the case here, because we have allowed transgender troops to serve openly since last year when we put these new policies into effect. This allows us to recruit from the broadest pool possible and adheres to the values upon which we were founded—freedom, equality, opportunity. I think it’s important that our military reflect the society that it protects.
There’s an interesting international component here, too. When [US] ground forces train with other ground forces, it is a person-to-person type of interaction on a large scale. There’s a real power and exemplification of our ideals as a country when people in other countries’ militaries, no matter what country it is, can see themselves in our military.
Q: What are the implications of this ban?
Fanning: It remains to be seen what this really means and how they plan on implementing it. I think it’s interesting that he used the verb “disrupt” in his tweet because this will be disruptive. It’s one thing to say you can’t join the military, it’s another thing to say to people who are in the military you have to get out. I think it will be very disruptive for formations across all the services. This is going to be confusing to [young recruits] and send a negative message about the military. Certainly it sends a negative message to people contemplating joining the military.
Q: How could this ban impact members of the LGBTI community currently serving in uniform?
Fanning: Transgender [individuals] serving in uniform now are all nervous. This is a far more sweeping change that the president tweeted… to say “you cannot serve in any capacity.” This tweet seems to imply the president saying “if you’re openly trans, you’re out.” When the president tweets major policy pronouncements, we don’t know. We don’t know if it was coordinated with the Pentagon, and so there are a lot of questions remaining.
Q: Will this decision affect the readiness and ability of the US military? If so, how?
Fanning: Readiness is everything. It’s training, it’s equipment, it’s discipline. I do think this decision will have a negative impact on readiness. There’s always a little bit of disruption when you make a change [inclusion of transgender troops], you have to implement it, you have to train for it, but the key word there is minimal. This is important for the viability of the military in an evolving society, and wanting to be able to recruit the best and the brightest. Why wouldn’t you want to expand the pool of people you can recruit from and knock down all arbitrary barriers? I believe strongly that opening up opportunities for people to meet requirements increases readiness, after whatever minimal disruption there is to implement the change. Frankly, that disruption is always overstated.
Q: Trump issued the ban citing medical costs and “disruption” as burdens on military functionality. Are these concerns warranted?
Fanning: I don’t think so. I haven’t seen anything that backs up allegations that charges are going to be as expensive as they say. I don’t know exactly what he means by that. All the evidence I’ve seen points to the contrary. It could be as little as .04 percent of medical costs in the military. I haven’t seen anything that would validate the use of the word disruptive.
Q: What has been the reaction thus far, and do you envisage further pushback?
Fanning: The day started with dismay, but not a lot of time to wallow in it because people rallied instantly. Seeing how quickly and how fully that rally [played out] has been really uplifting. I have a sense—now, I’m a hopeless optimist—that we’re going to come out of this with a lot more awareness and a lot more vocal support, not only from activists, from allies, but maybe from people who hadn’t thought about it before, who hadn’t talked about it before.
Q: Is this an issue with bipartisan support in Congress?
Fanning: I don’t know that I would say bipartisan support because I think that implies that both parties think of it the same way and it’s clearly not the case. This is a more important issue higher on the list of priorities for the Democratic Party. I think on the Republican side, there’s probably more support there than we realized.
Rachel Ansley is an editorial assistant at the Atlantic Council.