New Air Force policy denies transgender troops hearings before they’re discharged

The Air Force declined to answer questions about the policy and its legal implications.

The service provided a statement saying the new guidance “is consistent with and responsive to Department of Defense policy regarding Service members with a diagnosis of, or history of, or exhibiting symptoms consistent with, gender dysphoria.”

How the boards usually work

The boards traditionally offer a quasi-legal hearing to determine if a service member set to depart is still of value to the military and should stay on. Fellow service members hear evidence of whatever wrongdoing occurred and about the person’s character, fitness and performance.

The hearings are not a formal court, but they have much the same structure. Service members are often represented by lawyers, they can present evidence in their defense and they can appeal the board’s findings to federal court.

The Pentagon’s policy on separating officers notes that they are entitled to “fair and impartial” hearings that should be “a forum for the officer concerned to present reasons the contemplated action should not be taken.”

This impartial nature means that the boards can sometimes reach surprising conclusions.

For example, the three active-duty Marines who were part of the mob that stormed the Capitol on Jan. 6, 2021, were retained.

The commanding officer of the USS McCain, a destroyer that collided with an oil tanker in the Pacific in 2017, killing 10, was not recommended for separation in 2019.

Military lawyers decry the Air Force change

Priya Rashid, a military lawyer who has represented service members before hundreds of separation boards, said she “has never seen an order like this.”

“I’ve seen people with three DUIs retained, I’ve seen people that beat their wives retained, I’ve seen all kinds of people retained because the board is empowered to retain anyone for any reason if they feel it’s in the best interest of the service,” she said.

Rashid said she and other lawyers working with transgender troops view the guidance as telling the boards to automatically order separation based solely on a diagnosis or symptoms of gender dysphoria.

She said that constitutes an unlawful command by the Air Force and upends impartiality.

“This instruction is essentially saying you will not make a determination of whether somebody has future potential in the service,” Rashid said.

The new Air Force guidance also prohibits recording the proceedings.

Rashid said the lack of an independent transcript would not only prevent Air Force leaders from reviewing the hearings to ensure they were conducted appropriately but would undercut any meaningful chance to appeal.

Stepped-up efforts to oust transgender troops

Pentagon officials say 4,240 troops have been diagnosed with gender dysphoria, which the military is using as an identifier of being transgender.

The Pentagon got the green light from Supreme Court in May to move forward with a ban on all transgender troops. It offered two options: volunteer to leave and take a one-time separation payout or be discharged at a later date without pay.

Some transgender troops decided to fight to stay by turning to the boards.

Senior Master Sgt. Jamie Hash, who has served in the Air Force since 2011, said she “wanted to face an objective board to be evaluated on my years of proven capability.”

“I wanted the board to see the assignments overseas and at the Pentagon, the deployments to different Combatant Commands, the service medals and the sustained operational and mission effectiveness,” she said in an interview.

But now, she said, that “the path ahead feels more uncertain than it ever has.”

Logan Ireland, a master sergeant in the Air Force with 15 years of service that includes a deployment to Afghanistan, was planning to retire early until his request was denied last week.

After that, he decided he would take a stand at the separation board.

“I chose the involuntary route because I believed in the promise of a fair hearing — judged on my service, my record and the facts,” he said.

“Now that promise is being ripped away, replaced with a process designed to decide my fate before I even walk in the room,” he said, adding that “all I’m asking for is the same fairness and justice every service member deserves.”

Both Ireland and Hash said they have yet to hear from their immediate superiors on what the new policy will mean for them.

Lawyers are worried it will set a precedent that will spread throughout the military.

Rashid said both the Army and Navy are “going to look at what the Air Force is doing as a standard of law … is this the minimum standard of law that we will afford our service members.”

Transgender troops warn the policy could have wider implications

Col. Bree Fram, a transgender officer in the Space Force who has long been seen as a leader among transgender troops, argued that the policy is a threat to other service members.

In an online post, Fram said it “swaps judgment for automation.”

”Today it’s gender dysphoria; tomorrow it can be any condition or class the politics of the moment calls for,” she argued.

If the new policy is allowed to sideline “evidence of fitness, deployment history, awards, and commander input — the very material boards were built to evaluate,” Fram said, it sends a message that performance is no longer relevant to staying in the military.

Cathy Marcello, interim director for Modern Military Association of America, said the change adds to a “growing loss of trust” because outcomes are determined by politics, not performance. The organization advocates for LGBTQ+ service members, military spouses, veterans, their families and allies.

“It’s a signal that identity, not ability or achievement, determines who stays in uniform and who gets a fair shot,” she said.

Konstantin Toropin, The Associated Press

by Canadian Press

New Air Force policy denies transgender troops hearings before they’re discharged

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