The Transgender Military Service Ban: Discharging Transgender Military Members
On January 27, 2025, President Donald Trump issued Executive Order No. 14183, Prioritizing Military Excellence and Readiness, which banned transgender people from serving in the United States military. The executive order itself did not provide clear procedures or policy with respect to how transgender military members would be treated.
A lot of questions remained:
- Will transgender military members who were already in the military be allowed to continue serving?
- Would the ban on transgender people serving in the military only apply to recruits looking to join?
- Would a transgender military member discharged solely for their transgender identity be medically discharged or involuntarily separated under the same provisions used for misconduct?
- What service characterization would a military member discharged for being transgender receive?
Since President Trump issued the ban on transgender military members, additional policies have been issued from the Department of Defense (DoD) and the respective military services, including a memorandum from the acting Under Secretary of Defense for Personnel and Readiness on February 26, 2025.
However, numerous questions remain unanswered. A group of miltiary members have also filed a lawsuit asking courts to halt implementation of the transgender service ban and prevent the discharge of transgender servicemembers. The battlefield on this issue will continue to evolve as new policies and legal challenges will shape the reality for transgender military members.
In this blog post we will explore the current status of the transgender military service ban, what the ban prohibits, and the rights of transgender military members being discharged under this policy. KMD will also continue to monitor the legal and policy developments on this topic to provide updated information.
Understanding the Transgender Military Service Ban
What is the transgender military service ban?
The transgender military service ban prohibits people who have a current diagnosis, history of, or exhibit symptoms consistent with gender dysphoria from serving in the United States military. It also bans people who have received cross-sex hormone therapy or sex reassignment or genital reconstruction surgery in pursuit of a sex transition from serving.
The ban is immensely broad and applies to both military members and prospective military members of all services. This ban applies to people already serving in the military including active duty, reservists and Guard members, military recruits/applicants (including Delayed Training and Delayed Entry program participants), Military Service Academy students, and ROTC members.
Members who are already in the military will be involuntary separated. Recruits and applicants who have not yet enlisted or accessed into the military will be disqualified from service and will not ship to initial entry training. People admitted to the Military Service Academies or ROTC program will have their admission offers rescinded. Students already attending Military Service Academies or participating in ROTC programs will be separated.
Who is banned from serving under the policy?
People who have a current diagnosis of gender dysphoria, have a history of gender dysphoria, or exhibit symptoms consistent with gender dysphoria are ineligible for military service. This prohibition includes people who have a history of cross-sex hormone therapy (defined as “the use of feminizing hormones by a male or the use of masculinizing hormones by a female”), sex reassignment, or genital reconstruction surgery as treatment for gender dysphoria.
The policy defines gender dysphoria as “a marked incongruence between one’s experienced or expressed gender and assigned gender of at least 6 months’ duration, as manifested by conditions specified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders: Fifth Edition, page 452, which is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning.”
The policies issued thus far to do not provide a specific or explicit definitions of “symptoms consistent with gender dysphoria” or what, for example, what constitutes a “history of” gender dysphoria. Also, because a separate executive order establishes that the federal government only recognizes two sexes, male and female, there is no mention in the policies issued thus far of non-binary people.
Exceptions to the Transgender Service Ban
If a person is ineligible for service under this policy, separation is mandatory unless a waiver is granted. Waivers are considered on a case-by-case basis and waivers can only be granted if the members meets specific requirements.
A military member will be discharged or barred from joining the military unless the member submits a waiver that proves the member meets ALL the following criteria:
- There is a compelling Government interest that directly supports warfighting capabilities in having the member serve in the military; and
- The member demonstrates 36 consecutive months of stability in their sex assigned at birth without clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
- The member demonstrates that he or she has never attempted to transition to any sex other than their sex assigned at birth; and
- The member is willing to adhere to all applicable standards including the standards associated with the member’s sex assigned at birth.
It is still unclear, though, exactly how a waiver is submitted or who has authority to approve waivers.
Other Gender-Related Requirements for Military Service
In addition to requiring transgender military members be removed from the military, the policy also sets out explicit gender-based requirements for every military member. All military members must adhere to the gender-based requirements of their sex assigned at birth.
For example, the uniform and grooming standards a member must adhere to are those for the sex assigned a birth, regardless of gender identity. Thus, military members who were born male must adhere to the uniform and grooming standards applicable to male members of the military, even if the member does not identify as male. Military members must use the berthing, bathroom, and shower facilities designated for the sex they were assigned at birth, unless operational necessity dictates otherwise. Military members are also subject to the fitness and body composition standards for their sex at birth.
Finally, military members must use the pronouns that reflect a member’s sex at birth regardless of how an individual identifies.
Legal Process and Rights for Transgender Military Members
Involuntary Discharge Process and Rights
Any member who is being discharged under the transgender military service ban is entitled to a separation board hearing prior to separation. That means the case has to be heard by a board consisting of three neutral and impartial military members. The board will determine if the member meets the criteria for discharge and will make recommendations on whether the member should be discharged even if they do meet the criteria under the ban.
The member being processed for separation has the right to an attorney to represent them at the board. An attorney can assist the member in presenting evidence, documents, and witnesses to the board in support to support of their case. The attorney can also assist the member in exercising their right to rebut the command’s evidence and cross-examine the command’s witnesses.
The member has a right to make a statement to the board and also has the right to remain silent and decline to make a statement. The statement can be oral, written, or both, and can be a sworn statement or unsworn statement. The member or their attorney can also question the board members to ensure they are neutral and impartial, make an opening statement, and make a closing argument to the board.
The acting Under Secretary of Defense’s recent memorandum requires military services to update or publish new regulations to implement the transgender ban, so more specific procedures will likely be released soon.
Medical Care and Other Entitlements for Transgender Service Members
Transgender service members are still entitled to the same privacy in protected health information as all other military members. Access to a member’s health information is limited to personnel with a specific need to know that is necessary to conduct official duties.
However, the transgender service ban does have implications for medical care of transgender members. The ban cancels all scheduled and planned surgical procedures facilitating sex reassignment and cancels cross-sex hormone therapy unless the member started the therapy prior to February 26, 205 and a medical provider recommends continued hormone therapy to prevent further complications.
While mental health care will still be provided for members seeking treatment for gender dysphoria, receiving a diagnosis of gender dysphoria will result in the member being processed for separation unless a waiver is granted.
A member who is involuntarily separated under the ban will receive an honorable discharge unless the member’s service record warrants a lower characterization. Servicemembers who are discharged solely because they are transgender who have a clean service record will receive an honorable discharge and be entitled to all benefits and entitlements that come with an honorable discharge.
The Road Ahead: What’s Next for Transgender Service Members?
When will separation processing for transgender military members start?
The transgender military service ban is technically in effect right now, though logistical and legal challenges mean it will take time for the military to start discharging people under the ban.
The military services have until March 28, 2025 to establish procedures for identifying service members who are transgender or are no longer eligible to serve under the new ban. The military then has 30 days after identifying a member is transgender or otherwise ineligible to serve under the ban to start the separation process.
The DoD does not currently track service members by gender identity, so it is unclear how many service members this policy will directly impact or how the military services will go about finding service members who are subject to the new ban.
Multiple lawsuits have also been filed that might further delay implementation of the ban, delay separation processing for transgender military members, or prevent the policy from ever being implemented. Multiple transgender military members, recruits, and organizations have filed lawsuits in civilian courts alleging the policy is unconstitutional and illegal. The lawsuits are requesting judges rule the policy is illegal and prevent it from being implemented.
On 4 March 2025, a judge ordered the Government to immediately disclose any plans to implement the ban, and a hearing is currently scheduled on March 12, 2025 for a lawsuit filed in Washington D.C., so additional developments in the legal realm are likely soon. Courts have not made a final decision yet on whether the ban is illegal, but judges can pause implementation of the ban until a final decision is reached or to give them more time to gather information to make a ruling.
The logistical hurdles the DoD has to overcome to implement the ban, such as establishing an effective process to identify transgender members and revising current regulations to reflect the new ban, as well as the legal challenges that have been raised asking courts to pause or prevent the ban from going into effect, mean it is unclear when, or even if, separation processing for transgender service members will start.
Voluntary Separation
Military members who have a current diagnosis or history of gender dysphoria, or exhibit symptoms consistent with gender dysphoria can voluntarily separate from the military. Right now, the window to voluntary separate is from February 26, 2025-March 28, 2025, though it is possible the window for voluntary separation will be extended. Members who voluntarily separate will not have to repay bonuses received prior to February 26, 2025, when the Under Secretary’s memorandum was issued, and any remaining military service obligation will be waived.
A DEFENSE COUNSEL CAN HELP
What a Defense Attorney Can Do For Transgender Military Members
The legal landscape of the transgender military service ban is changing quickly, with frequent developments in the Trump administration and DoD’s policy, as well as in the lawsuits filed in civilian courts. The law, regulations, and procedures concerning the ban are far from established or clear. A defense counsel can advise you of the current status of the DoD’s policy and its legality, and help make sure you understand the rights and options you have.
If you are facing separation, a defense attorney will assist you in preparing for the separation board and build your case to present to the board. The defense lawyer will also attend the hearing, ensure the members are impartial, give opening statements, a closing argument, and question witnesses. In addition, an attorney can assist in submitting a waiver and advocate for your retention in the military.
KMD Will Help
KMD is here to help transgender military members navigate this uncertain and scary situation. KMD believes that all qualified, willing members should be able to serve in the military regardless of their gender identity. We feel the transgender military service ban is an illegal, discriminatory policy, and we are determined to fight it.
Our desire to fight this ban and ensure transgender members have legal representation to stand with them as they face this is so strong, we are willing to represent transgender military members facing adverse action from the ban at no cost. If you have questions, need help, or are facing action, please contact us and we can discuss representation to help you.
We also encourage all transgender servicemembers to identify resources available to assist them through the Modern Military Association of America.
