President Donald Trump’s surprise announcement that he wants to ban transgender troops will have little practical effect in the short term for those who are already serving, according to legal experts.
Trump, in a series of three tweets on Wednesday, declared that transgender individuals will no longer be able to serve in the military “in any capacity.” The move could undo policy set under President Barack Obama that allowed thousands of transgender troops to serve openly.
But without a formal modification to military regulations — a process that could take months — the decision does not constitute a change in policy.
“A statement by a president is not the same thing as formal rule-making process,” said Tobias Wolff, a professor at the University of Pennsylvania Law School. “None of the rules currently in place in the Department of Defense and the service branches have changed because of this statement."
Others, like Dru Brenner-Beck, a retired Army judge advocate general and president of the National Institute for Military Justice, agreed.
She said that under normal procedure, the president would issue an executive order instructing the Pentagon to go about changing the department’s personnel policy — but only after Defense Department officials coordinated with various parts of the military and weighed in on the proposed changes in the draft order.
Brenner-Beck added that it’s even legally questionable whether a declaration from the president’s personal social media account is enough to launch the process of rewriting Pentagon regulations, calling it “a whole new frontier."
“A tweet doesn’t really give you policy,” she said. “How do you implement a tweet? Usually you would have some kind of an actual policy document that comes down.”
As of Thursday afternoon, the Pentagon’s transgender policy was still live on the department’s website. It includes a link to DoD Instruction 1300.28, which lays out policies such as for how a service member can transition genders.
“There are regulations in place that seem to protect those transgender [troops] currently serving and those usually aren’t overturned overnight,” said Rachel VanLandingham, a former Air Force judge advocate general and professor at Southwestern Law School, but she noted that with buy-in from Defense Secretary Jim Mattis, “it won’t take much to rescind all protection.”
Even if the Pentagon does begin rewriting its rules because of the tweet, Brenner-Beck said it will take “months” before new guidance is issued and even that timeline is optimistic.
It’s not as simple as revoking the current guidance and going back to policies used when transgender personnel still weren’t allowed to serve openly, she said. Officials will have to consider several intricate issues, such as how to handle transgender troops who outed themselves under Obama’s policy and what to do for a service member who potentially had some but not all of the medical treatment required for gender reassignment, Brenner-Beck said.
“Hopefully someone in the White House is saying if we’re going to do this, we have to do it in something other than a tweet to capture what president really wants to do,” she said.
Wolff also questioned if any effort to re-implement the ban would even move forward after the swift rebuke from Congress to Trump’s announcement.
“No one is rewriting any guidelines yet,” he said.
There is also the real prospect of a court battle.
Matt Thorn, the executive director of LGBT advocacy group OutServe-SLDN, has already said that the group plans to file suit to prevent a ban.
“We’re going to start by taking the fight to Donald Trump in the federal court,” he said in a statement.
Brad Carson, who served as the acting undersecretary for personnel and readiness under Obama, said in an interview that “nothing seemed to change today” as a result of the tweets.
Yet he added that Mattis could revoke the current policy quickly if he chooses to. “The Defense secretary could overturn those regulations with the stroke of a pen if he chose to do so. If that’s what president is directing him to do, Secretary Mattis may be compelled to do that."
However, Carson, too, said the new ban “almost certainly will” be slowed down by a legal challenge in court.
“I feel pretty confident that the courts will not allow this to stand,” he said.
The Pentagon, for is part, was clearly trying to steer clear of the issue on Wednesday, directing all questions to the White House.
“We will continue to work closely with the White House to address the new guidance provided by the commander-in-chief on transgender individuals serving the military,” Navy Capt. Jeff Davis, a department spokesman, said in a statement.