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Legal experts say there is no actual waiver for transgender service members
"It's a trap," one legal expert told The Advocate.
A so-called waiver in President Donald Trump’s ban on transgender military service is an illusion. Rather than offering any path to serve, it requires transgender service members to erase their own existence—to step into a time machine and prove they were never transgender in the first place. Legal experts tell The Advocate that anyone who has transitioned, received gender-affirming care, or even exhibited symptoms consistent with gender dysphoria is categorically ineligible. The waiver exists solely for those who were mistakenly identified as transgender—not for trans service members themselves.
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“The cruelty of this so-called waiver is that at first glance, it created some hope for our transgender troops and their families that they could be spared from the rapid-fire purge scheduled to result from this discriminatory executive order,” Shannon Minter, legal director for the National Center for Lesbian Rights, which is leading the legal fight against the ban in Talbott v. Trump, told The Advocate in a statement. “When in reality, this language chillingly indicates that the government will aggressively attempt to identify anyone who is gender non-conforming, with the waiver available only to those who can demonstrate that they are not transgender and were swept up in the identification process by mistake. This is wrong. Anyone who meets the standards should be able to serve.”
Related: Federal judge forces Trump administration to disclose all plans to implement trans military ban
The so-called waiver is part of Executive Order 14183, which Trump signed on January 27, a sweeping directive that reinstates and expands his previous ban on transgender military service. It was disclosed in a court filing on Tuesday.
The order asserts that transgender people are incompatible with the military’s standards and mandates the separation of any service member with a history of gender dysphoria or who has undergone gender-affirming care. It also halts enlistments of transgender recruits and requires all military records to be reverted to a service member’s sex assigned at birth—an erasure codified into policy.
According to internal Department of Defense guidance obtained by The Advocate, the policy states that for a service member to qualify, they must have lived as their birth-assigned sex for three consecutive years, must never have attempted to transition, and must be willing to adhere to all military standards associated with their assigned sex.
Related: Army memo sends mixed signals to transgender service members
“Service members may be retained and considered for a waiver on a case-by-case basis, provided there is a compelling government interest in retaining the Service member that directly supports warfighting capabilities,” the public affairs guidance states. But to even be considered, the service member must meet specific conditions: “The Service member demonstrates 36 consecutive months of stability in the Service member’s sex without clinically significant distress or impairment in social, occupational, or other important areas of functioning; and the Service member demonstrates that he or she has never attempted to transition to any sex other than their sex.”
The guidance makes clear that anyone who could be trans is out. “Service members who have a current diagnosis or history of, or exhibit symptoms consistent with, gender dysphoria will be processed for separation from military service,” the document states.
And the consequences are already devastating. The administration’s policy has halted gender-affirming medical care, even for those mid-treatment. In some cases, trans service members were on the operating table when their gender-affirming surgeries were canceled, the NCLR attorney said. Others who had secured highly competitive positions—such as an officer set to become a West Point instructor—were abruptly placed on administrative leave. “These are some of the country’s most highly skilled and specialized service members,” the NCLR attorney said. “They have worked their entire careers for these positions, and they’re just being discarded.”
Related: Trump administration admits to judge it doesn’t know how many troops are trans—or why it’s banning them
They called the policy “bizarre and horrifying,” emphasizing that the administration isn’t just targeting transgender individuals—it’s sweeping in gender non-conforming service members who may not even identify as trans. “The only way to qualify for a waiver is to prove you were wrongly identified as transgender,” the attorney said. “If you are actually transgender, you are categorically ineligible. There is no waiver for you."
They added, "It's a trap."
The policy doesn’t just strip transgender troops of their careers—it labels them as offenders, the NCLR attorney said. Instead of being medically discharged, trans service members are being funneled into administrative separation; a punitive process typically used for misconduct. “This has never happened before,” the NCLR attorney said. “The military is using a disciplinary process to purge an entire group of people. That is unprecedented.”
The legal challenge to the policy is moving swiftly. On March 12, U.S. District Judge Ana C. Reyes will hear arguments in Talbott v. Trump, a lawsuit filed by GLAD Law and NCLR on behalf of transgender service members challenging the administration’s ban. In a Friday order, Reyes directed the government to disclose whether it intends to cross-examine witnesses. The judge also announced that she will take judicial notice of public statements made by the administration, including a January 27 White House fact sheet defending the ban and a February 27 post from the Department of Defense declaring transgender troops “disqualified from service.” The administration has attempted to argue that its policy does not amount to a categorical ban.
The military is preparing to enforce mass separations. A March 26 deadline looms for all branches to begin tracking and removing transgender service members. The Pentagon has not explained how it will identify trans troops, but an NCLR attorney expressed concern that it could involve reviewing medical records or forcing commanding officers to interrogate service members about their gender identity. “This is McCarthyism,” the attorney said. “They are actively seeking out trans people so they can purge them. That is the model they are following.”
Related: BREAKING: Pentagon's waiver for transgender troops forces them to deny their identities, court filing shows
The administration has justified its policy by claiming that transgender service members pose a risk to military readiness. But even the Pentagon’s studies show otherwise. Research has found that trans service members meet the same standards as their cisgender counterparts, and the argument that gender-affirming care is a financial burden crumbles under scrutiny. Over the past decade, the military has spent $52 million on gender-affirming care—far less than what it spends annually on erectile dysfunction medication.
SPARTA Pride, an organization representing transgender service members, has warned that the Pentagon is disregarding the service and sacrifice of transgender troops who have served openly and honorably for nearly a decade. The group highlighted that transgender personnel hold vital roles in highly specialized fields such as combat arms, aviation, nuclear engineering, law enforcement, and military intelligence—positions that require years of training and expertise.
As the legal battle unfolds, thousands of transgender troops are in limbo, unsure whether they will be forcibly discharged, stripped of their medical care, or even forced to de-transition. “This is not just about removing trans people from the military,” the NCLR attorney said. “They are trying to make it as painful and humiliating as possible.”
A Pentagon spokesperson did not comment. The Department of Justice also did not respond to The Advocate’s request for comment.
