New Pentagon policy undercuts trans troops' ability to ask to stay in the military, AP learns

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WASHINGTON (AP) — The Pentagon has rolled out a new policy that will severely undercut the ability for transgender troops who have been banned from the armed forces by the Trump administration to turn to boards of their peers to argue for their right to stay in the military, according to a memo obtained by The Associated Press.

If military separation boards decide to allow transgender service members to remain in uniform, commanders can override that decision, according to an Oct. 8 memo to all the services from the Pentagon’s undersecretary for personnel and readiness, Anthony Tata. That breaks with longstanding policy that boards act independently.

It is the Pentagon’s latest step to drive transgender troops out of the armed forces following an executive order from President Donald Trump. He and Defense Secretary Pete Hegseth have targeted diversity, equity and inclusion efforts in what they say is an effort to make the military more lethal.

The adminstration's policies have faced pushback in the courts as trans troops and their supporters say they have proven their worth to the military, but the U.S. Supreme Court in May allowed the ban to be enforced while legal challenges proceed.

The new memo, which advocates say was only made available to troops last week, also sets up an additional hurdle of requiring that trans service members appear before separation boards in uniforms that match the gender assigned to them at birth — and if they fail to do so, their absence can be used against them.

The policy — and specifically the uniform mandate — will force a lot of people not to be able to attend their separation board hearings, according to Emily Starbuck Gerson, a spokeswoman for SPARTA Pride, an advocacy group for transgender troops and veterans.

“They’re already essentially being rigged with a predetermined outcome and then now you’re further penalizing someone for not showing up because they can’t wear the wrong uniform,” Gerson added.

When asked about the memo, Pentagon assistant press secretary Riley Podleski said that “as a matter of policy, the Department does not comment on ongoing litigation."

The policy follows an Air Force directive reported by The Associated Press in August, which said separation boards could not independently decide whether to keep or discharge transgender troops and instead “must recommend separation of the member” if they have a diagnosis of gender dysphoria — when a person’s biological sex does not match up with their gender identity.

Gerson said the new policy that applies to all the services “feels very similar to what the Air Force rolled out” but noted that some of the additional hurdles like the uniform mandate were “alarming.”

The October memo says, “should the Service member not conform to uniform and grooming standards, board proceedings will continue with the Service member in absentia and may, as appropriate, take the Service member’s failure to comply with standards intro consideration when determining whether the basis for separation has been established.”

Many transgender troops have been serving for years and likely don't own uniforms in the gender assigned to them at birth. And they say forcing them into those uniforms would feel wrong.

Logan Ireland, a master sergeant in the Air Force with 15 years of service, said he has been seen as a man for most of his adult life and for almost 13 years of his military service.

“It would be a betrayal of what the military has seen me as,” he said, adding that “it would be like a costume-like effect.”

Ireland, like almost all other transgender troops, is on administrative leave, and he is sporting a long beard.

“Can I put on a skirt or wear the female dress uniform? Sure, yes. ... But does that reflect who I am and what I appear to be on a daily basis? No, and it just creates a lot of confusion,” he said.

Gerson, the advocate, says the new policy seems to run counter to the ideal of a merit-based military that Hegseth has touted.

"It does not account for the service member's career history, accomplishments, training and the necessity to their field,” she said.

Ireland also noted that the policy "denies us the dignity and respect we were promised as we are forced out of a service that once honored our contributions.”

The boards traditionally offer troops who are facing separation from the military a chance at a quasi-legal hearing to determine if that service member still has value to the military and should stay on. Fellow service members hear evidence of whatever wrongdoing occurred and about the person’s character, fitness and performance.

While not a formal court hearing, it has much the same structure. Service members are often represented by lawyers, they can present evidence in their defense and they can appeal the board’s findings to a federal court.

The Pentagon’s policy on separating officers notes that they are entitled to “fair and impartial” hearings that should be “a forum for the officer concerned to present reasons the contemplated action should not be taken.”

This impartial nature means that the boards can sometimes reach surprising conclusions. For example, the commanding officer of the USS McCain, a destroyer that collided with an oil tanker in the Pacific in 2017, killing 10, was not recommended for separation in 2019.

More recently, the three active duty Marines who were part of the mob that stormed the Capitol on Jan. 6, 2021, were also retained.

Priya Rashid, a military lawyer who has represented service members before hundreds of separation boards, said the fact that commanders can override this process for trans troops subverts justice.

“Service members who are accused of serious misconduct, violent misconduct, sex-based misconduct ... are being afforded more due process protections and more rights and entitlements than this group of people solely based on the administrative label of gender dysphoria,” she said.