We’re seeing media headlines suggesting National Guard defiance of the Pentagon’s transgender ban, along the lines of “Five States Say They’ll Let Trans Troops Serve in National Guard.” But the headlines don’t quite get the story right.

There is no defiance going on.  Guard leaders are saying they will use the discretion given under the policy to retain transgender members where possible.  Example:

“A spokesperson for Washington State Gov. Jay Inslee told The Daily Beast that his office “stands in solidarity with transgender Americans across the country in opposing this policy and won’t stop fighting until it is defeated.”

“Until then, we will continue to welcome transgender service members to the greatest extent possible under the rules,” the spokesperson added. “It’s our understanding that is what New Mexico is doing as well.”

Retention policy in general gives great discretion to local commanders to keep good troops.  The same is true for how to manage troops with gender dysphoria. The policy doesn’t require anyone to look for transgender troops or to evaluate their fitness with an eye toward separation.

But here is the sticking point: The regulation enacting the new ban (DTM 19-004, at page 5) pushes approvals for gender transition (for the non-exempt) up to the Pentagon level.  Local commanders can choose to retain, but they can’t choose to allow transition. These state leaders are only making clear that they won’t use the policy as an excuse to focus on transgender members.  If they weren’t a problem before, they aren’t a problem now.

Of course, the policy gives the same authority over retention decisions to commanders who are less inclined to protect their people—and unit readiness—from political pressure. They are free to be arbitrary and end the careers of transgender members who are fully capable of performing duty. It’s the unpredictability that makes the ban so effective, as this Palm Center report explains in depth. The only rational response for transgender troops is to remain silent and invisible. That is why experts such as former Chairman of the Joint Chiefs of Staff Mike Mullen characterize the new ban as “don’t ask, don’t tell” for transgender troops.