A new policy rolled out by the Pentagon effectively removes a crucial part of due process for military service members facing involuntary separation under Trump’s second ban on transgender military members. Those who wish to argue against their separation at a board hearing will now have the final decision made by a superior who is not required to participate in that hearing.

“The administration knows these service members have done absolutely nothing wrong and that they are being discharged despite years of faithful service, commendations, honors, promotions, and deployment to combat zones across the globe,” Shannon Minter, legal director and vice president of the National Center for LGBTQ Rights, told The Advocate. “This is a cruel and bizarre attempt to deflect attention from the reality that these proceedings reflect a deeply flawed policy that is harmful to the military and to our country.”

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When a service member faces involuntary separation from the armed forces for any reason, they are given a chance to contest the decision at an administrative separation board, if they’re enlisted, or a board of inquiry, if they are an officer.  Like a court proceeding, service members can be represented by a lawyer, provide evidence that they should not be separated, and have peers speak on their behalf.

After that, the board will make a decision based on a preponderance of evidence standard and then make a recommendation for dismissal or retention, which is then enacted by a separating authority, most often, the person’s commanding officer.

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The Pentagon’s new policy, revealed in an October 8 memo obtained by the Associated Press, affects only service members involuntarily separated under the trans military ban and the memos previously released to enforce it. In those instances, according to the October memo, the boards have no ability to recommend retention for a service member who meets their criteria for being deemed as trans, and the separating authority can now overrule any decisions and recommendations made by the board.

After initially introducing a trans military ban during his first presidential term — which the Biden administration then overturned — Trump signed an executive order in January called “Prioritizing Military Excellence and Readiness,” which banned trans people from serving in the military. While it was contested in the courts, in May the Supreme Court ruled that it could go into effect, and trans troops were given a deadline in June to self-identify for voluntary separation.

Those who refused to voluntarily separate faced the threat of a dishonorable discharge at a later date as well as a requirement to pay back any bonuses received during their military career. While an estimated 1,000 military members took the voluntary deal, it’s estimated that the majority of trans service members — which could number between 4,000 and 14,700 — did not.

The Pentagon is now conducting a witch hunt to find trans people in the ranks. If a service member is accused of being trans, then a board will hear evidence and be tasked with deciding whether that person meets the military’s definition of trans, defined by the Pentagon memo as the following: “All boards will only make findings about whether a respondent has a diagnosis, history of, or exhibits symptoms consistent with gender dysphoria and, if so, that the respondent should be separated in accordance with reference.”

While trans service members can apply for a waiver to remain in service, that is only possible if they can prove that they have “36 consecutive months of stability in their sex assigned at birth without distress or impairment,” have never tried to transition, and are willing to serve under their sex assigned at birth (which some would argue is simply defined as not being trans).

The new memo is additionally cruel in that it includes a mandate that service members must appear at the board hearings in a uniform that matches their gender as assigned at birth. No waivers will be considered for this requirement, and if a service member appears in any other attire the hearing will proceed with them marked as “in absentia.”

As Emily Starbuck Gerson, a spokeswoman for SPARTA Pride, told the Associated Press, the policy is likely to keep some away from their hearings.

“They’re already essentially being rigged with a predetermined outcome, and then now you’re further penalizing someone for not showing up because they can’t wear the wrong uniform,” Gerson said.

Gerson also pointed out that this policy seems at odds with the merit-based military model that Secretary of Defense Pete Hegseth pushed during his September speech. “It does not account for the service member’s career history, accomplishments, training, and the necessity to their field,” Gerson said.

The Pentagon’s new policy is very similar to one that the Air Force rolled out back in August, which made it the first branch of the armed forces to provide full guidance on removing trans military personnel.

“This isn’t a policy — it’s a shadow process,” SPARTA Pride said in a statement at the time, “It creates a military that is no longer built on standards and values identity over merit and paperwork over judgement, eliminating transparency along the way.”

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