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Biden Reversed the Ban on Transgender People Serving in the Military: What Does That Mean?

WASHINGTON, DC - JANUARY 21: U.S. President Joe Biden signs executive orders as Vice President Kamala Harris looks on during an event at the State Dining Room of the White House January 21, 2021 in Washington, DC. President Biden delivered remarks on his administration�  s COVID-19 response, and signed executive orders and other presidential actions. (Photo by Alex Wong/Getty Images)
By Maddy Teka, Esq. on February 02, 2021 12:38 PM

In a recent executive order, President Joe Biden reversed the transgender military ban that former President Donald Trump instituted in his favored mode of communication, a tweet.

This order brings back the Obama-era policy that allowed transgender people to serve in the military openly. The text of the order reads:

"It shall be the policy of the United States to ensure that all transgender individuals who wish to serve in the United States military and can meet the appropriate standards shall be able to do so openly and free from discrimination."

Previous Ban On Transgender Service Members

In the previous rule that went into effect in 2019, Trump blocked individuals who have been diagnosed with gender dysphoria from serving, with some exceptions. It also added that people without such a diagnosis could serve only "if they do so according to the sex they were assigned at birth."

While the repealed rule allowed already serving personnel to continue serving, new recruits were unable to join.

This rule was challenged several times and had worked its way to the Supreme Court. In a 5-4 decision in two rulings in Trump v. Karnoski and Trump v. Stockman, the Supreme Court allowed Trump's policy to continue. In its ruling, the Supreme Court allowed the policy to take effect until pending litigation is finalized in lower courts.

President Biden Repeals the Ban

“Transgender service members will no longer be subject to the possibility of discharge or separation on the basis of gender identity," the Biden White House said in a statement. In light of that, the executive order signed earlier this week allows transgender people to openly serve in the military. Specifically, it:

  • Repeals the orders by Trump barring transgender people from serving in the military
  • Prohibits discharging or denying reenlistment of members of the military because of their gender identity
  • Orders the correction of records (from a dishonorable discharge to honorable) of people who have been dismissed from service for their gender identity
  • Directs the secretaries of Defense and Homeland Security to brief the president within 60 days of the implementation progress

While an executive order is a massive step toward ensuring transgender people are welcome in the military, some experts argue that it may not be enough. Advocates like Rep. Jackie Speier, D-California, who chairs the House Armed Services Military Personnel Subcommittee, argue that unless Congress passes legislation, there will always be a chance that the next administration can overturn the current policy.

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