The Transgender Ban’s “Grandfather” Clause Has Already Failed

by Palm Center | April 21, 2019

There ought to be some rational explanation for why Map Pesqueira, a transgender cadet already enrolled in ROTC, was dismissed despite DOD’s promise to protect people currently in officer training from the ban. But there isn’t a rational explanation. The ROTC policy failed, and DOD is holding firm in refusing to explain (or simply not understanding) what happened.

It’s a very good question: why is a current transgender ROTC cadet being dismissed when the policy was supposed to provide grandfathered protection? As a recent Daily Beast article correctly notes, Pentagon policy grandfathers people who are “selected for entrance into an officer commissioning program” and diagnosed with gender dysphoria before the effective date of the ban, April 12. Grandfathering allows people to serve under the 2016 terms of prior inclusive policy. So what happened with Cadet Pesqueira?

While some may believe that the grandfather clause allows people in military service or training to be diagnosed with gender dysphoria, but not to receive medical treatment for it, that’s not quite right. The point of grandfathering is to allow current transgender members to continue serving AND to receive appropriate medical care, including care related to gender transition. Cadet Pesqueira’s dismissal was the result of DOD not creating a promised pathway for ROTC cadets to be designated “exempt,” or grandfathered. If DOD had done this, transgender cadets could transition gender and be retained.

The Daily Beast pressed DOD on whether receiving transition-related care was the cause of dismissal, but it only got non-answers in return from DOD: “The student’s gender identity did not impact his status in the ROTC program. The scholarship offer was contingent upon meeting the standards required of all prospective recruits; the student did not meet these standards.” DOD added: “The offer was contingent upon meeting service entry standards. There are a wide range of medical conditions that make prospective recruits unfit for military service. It would be improper to discuss the medical history of a particular candidate.”

The problem is that Pentagon policy only protects ROTC cadets with gender dysphoria diagnoses if cadets were able to get that diagnosis confirmed by a military medical provider between the implementation of inclusive policy on June 30, 2016 and the reinstatement of the transgender ban on April 12, 2019.

But DOD policy never explained how ROTC cadets, living in the civilian world without access to the military medical system, were supposed to do that. (DOD never expected ROTC cadets to obtain gender dysphoria diagnoses from military providers). So its promise that cadets in officer training would be protected from the ban was baseless, because it had to know that gender dysphoria diagnoses and treatments were taking place but were not being managed by military doctors. Treatment was being managed by civilian doctors in a civilian setting. The only regulatory guidance (see section 3.5) for transgender cadets was to complete their training and be ready to commission at graduation.

DOD never provided a pathway for ROTC cadets that could have qualified them for grandfathered status, mainly because the DOD of 2016 could never have anticipated it needed to protect future cadets from a ban.

Then, the DOD of 2019 issued a ban requiring cadets to use the very pathway that didn’t exist. ROTC cadets like Map Pesqueira were dismissed not because they had transitioned genderbecause that was allowed for grandfathered individualsbut because there was no practical way to reach grandfathered status. The promise of protection was never going to work.

 

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