(WB) In the year since the Department of Defense’s restrictions on transgender service members went into effect, some who were “grandfathered in” now find themselves fighting COVID-19 while others are barred from serving despite having medical training.
The DoD’s restrictions, detailed in its directive-type-memorandum 19-004, went into effect on April 12, 2019 in response to President Donald Trump’s July 26, 2017 tweet stating the U.S. military would no longer “accept or allow transgender individuals to serve in any capacity.”
However, a year after the ban went into effect, transgender service members continue to serve in multiple capacities, including “directly supporting COVID-19 relief and recovery as medical professionals, logisticians, security forces and administrators,” according to SPART*A, a trans service member support organization.
For example, Navy Hospital Corpsman Alonna Lovanh is an out trans woman who tests patients for COVID-19 as a medical laboratory technician.
While she analyzes patient samples, Lovanh must keep an Exception to Policy memo in her uniform “in case anybody asks me about my hair. I can say it is in the correct standards in accordance with my gender because I am female.”
When Lovanh spoke with the Blade, she rarely used the word transgender and spoke with a confidence that emanated from the memo in her pocket exempting her from the ban’s restrictions and allowing her to continue receiving necessary medical treatment. Other trans service members are not as fortunate.
“April 12 created a break between those who already transitioned and those who had not yet,” she explained. “Those who are nonexempt, they have been told they are not allowed to take medications or transition. They would not be allowed to get medical aid as provided by the military. But for me, since I am exempt, I have a care plan for where I am in my transition, to include my medications. But those who are nonexempt, they do not really get a care plan.”
Lovanh’s work, and other COVID-19 relief efforts by trans troops, highlight contradictions addressed by ongoing legal challenges to the ban. Though the DoD states the restrictions do not constitute a “ban,” they restrict the ability of transgender people to serve authentically even during a global crisis.
“It prevents transgender people from joining the military or commissioning,” explained Peter Perkowski, the legal and policy director of the Modern Military Association of America. “Unless you agree to serve in your birth sex and are certified ‘stable’ for 18 months in your birth sex. That’s why it’s a ban [for people who have or want to transition].”
Melody Stachour, a transgender Navy chief petty officer who is also exempt from the ban’s restrictions, stated these restrictions feel more intense than those under the now rescinded “Don’t Ask, Don’t Tell” law banning open service based on sexual orientation.
“Then you would change the pronouns of your partner in order to keep serving,” she said. “Now you have to change your own.”
Last year’s April 12 deadline for transgender troops to medically or socially transition prior to the ban’s implementation created two separate but supposedly equal groups of trans service members. The DoD categorizes them as either “exempt” from the restrictions (i.e. “grandfathered in”) or “nonexempt” and restricted from medically or socially transitioning from their assigned sex at birth.
Perkowski pointed out the ban violates the equal protection clause of the Constitution by creating a sex-based and gender-based classification as well as a due process issue.
“The question becomes whether the government has a legitimate basis to make this decision,” he said, also stating the “special accommodations” a Pentagon spokesperson told NBC News the memo “removes” involves medical care all military personnel should be able to receive and not be restricted from.
Other restrictions include not having a diagnosis of gender dysphoria, which the American Psychological Association defines as “discontent with the physical or social aspects of one’s own sex,” and not having a history of “cross-sex hormone therapy” or of gender-affirming surgery, all of which are considered “disqualifying” under the new guidance.
“Individuals who are not exempt must adhere, like all other service members, to the standards associated with their biological sex,” states the DoD memo.
However, Stachour said the new classifications and restrictions only apply to transgender service members.
“Over the past year the policy states that if you were not ‘out’ prior to it, then you were not allowed to serve [openly] and you were not allowed to join the service if you transitioned,” she told the Blade.
While the guidance states service members may not be discharged on the basis of gender identity, it states they can be discharged or face “appropriate disciplinary action” if they are “unable or unwilling” to meet standards “associated with their biological sex.”
A nonexempt transgender service member initially reached out to the Blade to discuss life under the DoD restrictions, but later changed their mind out of fear of discharge or other negative consequences if outed. The current policy does state that transgender service members or potential recruits may seek waivers from these restrictions, but no waiver has yet has been approved or denied.
Although, according to SPART*A, many have applied in the past year.
Bree Fram, SPART*A’s communications director and a transgender Air Force lieutenant colonel who is exempt from the ban, told the Blade they were aware of around “20 or more” nonexempt trans service members who applied for waivers.
“They are understanding that they are taking a risk and should they be denied, they can be separated,” Fram explained. “Once that waiver is denied, they can face discharge. Anyone who is putting a waiver in should consider that at the end of that process could be a discharge.”
However, many nonexempt trans service members are willing to accept the risk because an approved waiver grants them the protections and stability of exempt status.
“The waiver allows you to be an exempt individual,” Fram said. “And fall under those criteria for stability.”
According to the DoD’s governing memorandum, “Service members who are exempt may not be separated, discharged, or denied reenlistment or continuation of service solely on the basis of gender identity,” and they will be treated “in a manner consistent” with a cisgender service member.
“In case I wanted to go use the female head,” Lovanh said. “I can show anyone who questions me the [Exception to Policy] memo and say I am allowed to be here because the Navy recognizes me as female.”
But the process for obtaining a waiver is long and difficult, and in the past year only one has made it to a branch Secretary’s desk.
Even the current pandemic crisis has not eased the process for those with medical expertise. Fram told the Blade of a doctor who is having difficulty getting a waiver to join the service.
“I know a trans physician who can’t get traction from a recruiter to get into the service though he could be valuable in the fight against COVID-19,” she said.
The physician, who asked not to be identified so as not to further complicate his entry efforts, stated he had spoken with “every single branch and every form of service” to include active duty and National Guard components with similar results.
Stachour, who serves as a mentor for both lower-ranking officers and enlisted sailors, said the current crisis also prevents her from administering effective face-to-face career guidance to those she works with.
“One of the biggest struggles for the folks assigned to me,” she said. “is I don’t see them as much as I used to … so I wind up reaching out during my off-hours. I can’t get a quick two-minute update when we are walking out to our cars. The interpersonal mentoring is challenged.”
Both Stachour and Fram were chosen by cisgender senior leadership to serve as advisers partially because of their being transgender and the unique and empathetic experience it brings.
“Because I am senior enlisted and I’m trans, that means the chiefs look to me when trans people start showing up in their unit,” Stachour said. “I wind up mentoring sailors all around the world, whether they are assigned to me or not because I have an expertise they don’t…This is part of the makeup of a good chief.”
Similarly, Fram was selected for an advising role because of the insights her enriched perspective brings.
“I was hired for a position because I was trans,” she recalled. “I had a long sit down with a new general officer and a week later I was asked to be his executive officer. Our discussion was about trans issues and he just wanted to learn because I had made a good impression on him.”
While Fram pointed out that exchange occurred prior to the implementation of the current restrictive policy, she still says overall her experience in her commands has been positive.
“I came out on the day the ban was first lifted in 2016, and I received incredible support from my coworkers,” she said. “I continue to receive support from my leadership. The welcome from my team that works for me today is fantastic.”
Lovanh also considers herself lucky to have come out prior to the ban and to be in the medical field.
“My peers in my opinion and experience have been all accepting,” she said. “I was very lucky to have a command who made sure I was comfortable. Sure, there are struggles, but in the medical community there is not having to explain too much. The information is available and easy to understand.”
But Stachour, Fram and Lovanh all worry for those who were caught on the wrong side of the April 12, 2019 deadline. They all see the nonexempt are having very different experiences under the ban.
“On a personal level for me, it has been about trying to assist others,” Fram said. “Particularly those who are nonexempt. As a senior officer, I continue to face a very welcoming military, but there are others who don’t face the same situation. Trying to make sure they are taken care of has had an impact on me. We want to make sure they can get medically necessary military care so they can focus on the mission and fully dedicate themselves to it.”
Stachour also pointed to this guilt of the exempt for the nonexempt as one motivation for her effective mentoring of all sailors, including those who are trans.
“Back in 2015, I knew my goal of transition was counter to the goal of staying in,” she recalled. “At that time those goals were in conflict due to the nature of the policy. So, [sailors] sometimes need to learn to put some goals on the back burner and let them simmer for right now, so when we do have the opportunity to re-attack that goal, we can do it with a richness that is not available to us right now.”
The Modern Military Association is currently attacking the ban with a case currently pending a discovery ruling. MMA has requested documentation from the government to support its basis for the ban.
“They have produced a lot of documents,” Perkowski said. “We are requesting a subset of that.”
He stated the October court date on the discovery issue is just one of two “clocks” determining the outcome of the ban.
“The second clock is the election in November,” Perkowski told the Blade. “If there is a change in administration — if Joe Biden becomes president, then this could all become moot when he takes office in January, since he said he will reverse this ban.”
Stachour and Fram also stated this could all end with a decision from the voters in November.
“The ban is going to stand until a new president is in office,” Stachour said before adding hopefully, “But I don’t think this ban is going to last forever.”
Fram agreed, stating, “A lot depends on how the election unfolds in the fall. If this situation continues, I encourage [trans youth] to continue to prepare for future entry into the service.”
In the meantime, Stachour, who resides in D.C. under a stay-at-home order, looks forward to the time when both COVID-19 and trans service restrictions are lifted. Then the Minnesota native can fully enjoy shows like “Rent” again at the National Theater with friends who are no longer “nonexempt.”
“Hold your head high,” Lovanh encouraged other trans people still hoping to serve. “And the day will come again when you will be able to come in and wear the same uniform I am. It may not be right now, but your time will come.”