On January 22, the U.S. Supreme Court allowed the Trump Administration’s ban on transgender individuals openly serving in the military to take effect while cases challenging it proceed. In the discussion that follows, Stanford Law Professor Jane Schacter, an expert on constitutional law, as well as gender and sexuality and the law, discusses the case.

When did the US military allow openly transgender people to serve? And is there an estimate of the number now serving?

In 2015, Ashton Carter, Secretary of Defense in the Obama Administration, commissioned a study to determine whether there were any reasons to continue a longstanding ban on military service by transgender people who wished to serve. The ban on service by lesbian, gay and bisexual persons had been lifted in 2010, but the ban remained largely in force for transgender people. A 2015 report by the Rand Corporation (an entity that had performed studies on many areas of military policy) concluded that there was no evidence that open service by transgender persons would have a negative impact, and that medical costs would not be substantial. In 2016, Secretary Carter announced that openly transgender persons who wished to serve would be admitted as long as they met the rigorous standards applied to all applicants. That policy was due to go into effect in January 2017. It was delayed by the Trump Administration and then repealed in its entirety by an unexpected presidential tweet announcing that no transgender persons would be permitted to serve. That policy was then refined by the Department of Defense and implemented in 2017.

The 2017 policy has been challenged in multiple lawsuits around the country. At various points, lower courts enjoined its enforcement while the litigation was pending. The effect of these injunctions was that transgender persons were, in theory, permitted to seek entrance to the military and many did apply. As I understand it, however, most of these applications have met repeated delays, so very few of these new applicants have been admitted. The 2017 policy did, however, have a reliance exemption for those already in the military who came out as transgender once the Obama Administration announced it would lift the ban. That exemption applies to about 900 service members. Reports suggest there are thousands more transgender members already serving, but reluctant to identify themselves given the hostility directed at them by this administration.