It has been seven months since Secretary of Defense Chuck Hagel first said he was "open" to reviewing the military regulation that keeps transgender Americans from serving openly in the U.S. armed forces.
"I do think [the policy] continually should be reviewed," Hagel told ABC's Martha Raddatz in May. "I’m open to those assessments, because, again, I go back to the bottom line. Every qualified American who wants to serve our country should have an opportunity if they fit the qualifications and can do it."
But there still has been no review ordered for Section 6130.03 of the Department of Defense Instructions, a Pentagon spokesperson confirmed to The Advocate. That policy declares any gender-affirming clinical or surgical treatment — and even any statement of a transgender identity — to be evidence of "psychosexual conditions, including but not limited to transsexualism [and] transvestism" that requires the service member be discharged.
Since Hagel's initial comments, transgender veterans have won an important victory that will allow them to obtain updated discharge paperwork that reflects their accurate name and gender.
Similarly, Robinson was cautious not to overstate the importance of a recently revised Department of Defense Instructions regulation that removed one explicit mention of transgender identity as a mandatory cause for discharge. Although the Palm Center reported that a recent update to DoDI 1332.18, Disability Evaluation System, meant current DoD policy barring trans service is out of compliance with the updated regulation, Robinson explained that such upper-level, bureaucratic changes are unlikely to filter down through the chain of command in a meaningful way for enlisted transgender members.
But that subtle change is only the most recent addition to a quickly snowballing collection of evidence in support of repealing the policy that bans open trans service.
Several prominent studies have determined that there is "no compelling medical reason" to continue to deny open military service to transgender Americans, as a March study backed by a former U.S. Surgeon General and performed by the Palm Center concluded. A nine-member commission, including several retired generals and flag officers, concluded a three-month study in August with the recommendation that changing the current regulations to allow trans citizens to serve openly would be "neither excessively complex or burdensome."
Indeed, 18 countries in Europe and elsewhere have already allowed trans citizens to serve openly without issue. Military commanders and veterans from several of those nations, including the United Kingdom, Norway, Sweden, Australia, and Canada gathered in Washington, D.C., in October to participate in a first-of-its-kind conference titled Perspectives on Transgender Military Service From Around the Globe.
That same month, California congresswoman and former Speaker of the House Nancy Pelosi became the first sitting politician to actively endorse a repeal of the regulation banning trans people from serving openly.
Where We Stand
In November, Hagel announced his resignation as secretary of Defense, meaning the window of opportunity to make good on his promise to an estimated 15,500 transgender men and women in uniform is drawing to a close.
Because the policy banning open trans service is a regulation rather than a law, it can be amended or outright repealed without congressional intervention. Although President Obama, as commander in chief, has the authority to unilaterally change the policy, most advocates continue to look to Secretary Hagel to move on the issue, pointing to a long-standing tradition that dissuades sitting presidents from intervening in military regulations.
But even within the military brass, cracks are starting to show in the unilateral "no comment" narrative that's been coming from the Pentagon since Hagel's comments. Earlier this month, the secretary of the U.S. Air Force told USA Today that she is ready to see the nation's ban on open service by transgender Americans become a thing of the past.
When contacted by The Advocate, spokespeople for the U.S. Army, Marines, and Navy all indicated that there are no current plans to change their respective branches' policy on transgender service members.
"Military commanders at all levels across the force are trying to do the right thing by transgender service members — trying to work around a policy that is increasingly proving unworkable," Robinson tells The Advocate. "The service secretaries know this, the [Joint Chiefs of Staff] know it, [Joint Chiefs chairman] General Dempsey knows it, and Secretary Hagel knows it. I would be shocked if the former sergeant Hagel doesn't take a moment, in his remaining weeks in office, to make good on his promise to the troops and order a department-level review."
Using the final weeks — or months, depending on how long confirmation hearings take for his successor — of his term to repeal an outdated policy would be far from unprecedented, if Hagel were to do so.
In fact, "there is a grand tradition of that sort of thing here in Washington," Robinson says. Former Secretary of Defense Leon Panetta used his final months in office to open combat positions to women and extend federal benefits to same-sex partners of American service members. Panetta's predecessor, Robert Gates, likewise used the end of his tenure to push for complete implementation of the repeal of "don't ask, don't tell," a law that barred gay men, lesbians, and bisexual Americans from serving openly.
So if Hagel has the authority to repeal the policy in its entirety, why is he dragging his feet on ordering a review — a process Robinson explains is "done all the time"?
"There's not really a need for special commissions, or, frankly, there's not a need for further research," Robinson says. "We have the answers to all of the relevant questions. SPARTA's expectation has been that a review at this level would take no more than a year to complete."
Robinson — and other military inclusion advocates — stress that the most effective way to enact change at this point is to keep the pressure on Hagel.
Fiona Dawson, a producer on the the forthcoming documentary series TransMilitary, which profiles trans service members in the U.S. and the U.K., argues that it's ultimately the stories of the men and women in uniform that will force the hand of the Defense secretary, himself an Army veteran who served in the Vietnam War.
"I would like to believe that Secretary Hagel can imagine looking in the eyes of the young man who right now risks his life in Afghanistan," Dawson tells The Advocate. "The same man who is performing his highly skilled, mission-critical job to the highest standard in an austere environment. His peers know him and treat him just like any other brother in arms. And whilst he is 'going out the wire' in the name of the United States, he is depending upon his employer to have his back with policies based on the most current medical knowledge. Just like his fellow service members, this guy has a mother, a father, a sister, a fiancé who anxiously await his return. The question is, Will he get to finish his deployment without discharge for having been assigned female at birth? And it's a question held by the more than 15,500 transgender services regarding each of their individual situations."
And if Hagel doesn't order that review before he steps down?
"I think that the president's commitment to transgender civil rights and human rights is unquestionable," Robinson says. "I think, though, that President Obama would very much regret leaving office with this piece of the work that he has done to lead our military toward true LGBT equality, undone."