volunteering to join the military, we should welcome all those who are willing and able to serve our country. . . . [D]ischarg[ing] someone who has incredible things to contribute makes no sense. . . . The challenge to this military ban has just highlighted how wrong it is to exclude people because of who they are.

The military, historically, has only allowed transgender individuals to serve if they serve in the sex they were assigned at birth. Despite that, the Williams Institute estimates that 15,500 transgender people currently serve the military, either on active duty or reserve. Additionally, transgender individuals are twice as likely as cisgender people to serve in the military. However, transgender individuals make up roughly 0.6 percent of total adults who reported to have served in the military. Navy Chief Petty Officer Brock Stone is just one of many transgender individuals who had served in the military, quietly doing his job well, when he woke up one day to find that then President Trump wanted him discharged. Stone served in Afghanistan, is trilingual, and has served for over fifteen years. Air Force Lieutenant Colonel Bree Fram, the highest-ranking openly transgender officer in February of 2021 stated in response to the Trump ban that, “we became an endangered species. There weren’t going to be any more of us. No one new could come out, no one new could get in.”

It is somewhat paradoxical that [LGBTIA+ individuals] who are treated as second-class citizens by their own country and government, with limited rights, would want to risk their lives and potentially die for that same country. . . . [M]any homosexual men and women have chosen such a profession in order to justify their existence and demonstrate that they are worthy of the same rights as others.

Transgender people face daily risk of violence when it comes to serving openly in the military. However, current and former transgender individuals who have served in the military have developed support groups to help with this harassment and violence. Nonprofits such as SPARTA serve this purpose by providing educational resources and advocating for military policy inclusivity. Despite the usefulness of organizations such as SPARTA, the Trump administration’s ban on transgender individuals imposed an artificial window of time that prohibited any service person from transitioning unless they wanted to lose their career.

This article discusses military policy surrounding transgender individuals and military service, and analyzes whether there is a constitutional right to military service under the Second Amendment, Militia Clauses, and 10 U.S.C § 246 that would require the Department of Defense’s delegation of authority from Congress or the President to satisfy the Greene test, requiring explicit authorization if a constitutional right is infringed. Part I of this article will provide a brief history of military policy regarding LGBTQIA+ individuals. Specifically, Part I will analyze the progression of military policy, from the Articles of War of 1916 to the policy under former President Trump. Part II analyzes current military policy under President Biden, focusing on the implications it has for internal military health screening policy. Part III examines circuit splits, the United States Constitution, and statutes to determine whether there is or is not a constitutional right to military service. Part IV proposes that under the framework in Greene v. McElroy, since the ban on transgender individuals serving in the military infringes on a constitutional right, Congress and the President must have explicit language authorizing the Department of Defense to promulgate rules banning transgender individuals from military service. Part V concludes that any policy banning transgender people from military service would likely result in legal challenges based on Equal Protection grounds and theorizes the likelihoods of success of these potential challenges. Ultimately, this article’s analysis shows that there is a constitutional right to military service, and any future ban on transgender individuals from serving in the military must be pursuant to an explicit grant of authority from Congress or the President.