NYT: Navy and Marine Boards Recommended Keeping 9 of 12 Service Members Facing Transgender Discharge

Three-member boards in the Navy and Marine Corps have recommended keeping service members who identify as transgender in nine of 12 cases, even though Pentagon procedures direct them toward discharge. That is the count compiled by the New York Times from interviews with service members and attorneys involved in the hearings.

The Pentagon has not released comprehensive figures. The hearings are closed to outside observers.

The numbers by branch

According to the Times, Navy boards have recommended retaining sailors in seven of nine cases since hearings began in July. Marine Corps boards have recommended retaining Marines in two of three cases since August.

The Army and Air Force look nothing like that. The Times counted roughly 50 Army hearings, with discharge recommended in all but about five. In the Air Force, about six hearings produced a discharge recommendation in every known case.

The recommendations are not final. The civilian secretaries who oversee each branch can overturn them.

What the boards are allowed to decide

Under Pentagon procedures, each board's job is narrow. It determines whether a service member has a history of gender dysphoria or evidence of transgender identification. It may not weigh military performance, specialized skills or combat experience.

Some Navy and Marine boards have crossed out portions of the findings documents and recommended retention anyway, according to the Times.

Staff Sgt. Damien Contreras, a Marine supply and logistics specialist with about a decade of service and three overseas deployments, was placed on paid leave in April. He appeared before a board at Marine Corps Base Quantico in Virginia in late August.

A government attorney presented 2017 documents showing Contreras had changed genders. The board reviewed his service record and performance evaluations, crossed out language about a history of cross-sex hormone therapy, selected "remains qualified" and recommended retention.

"You have war fighters looking at war fighters," Contreras told the Times. "They see I've always done my job, I've deployed, I've mentored other Marines, followed the rules."

Rachel VanLandingham, a former Air Force attorney and professor at Southwestern Law School, described the boards' behavior as defiance. "These boards are being told to do something that they know is wrong — to rubber-stamp a non-choice given to them by the administration," she told the Times. "We are seeing them nullify a process they see as unjust."

That is her characterization. The Pentagon's own procedures say the opposite: the question put to the boards is a yes-or-no one about a record of gender dysphoria or transgender identification, and performance is not on the table. A board that strikes the findings language and recommends retention is not following that instruction, whatever its reasons. A military run by orders only works if review bodies apply the rules they are handed or the rules get changed through proper channels.

A separate fight over compliance

The military hearings are not the only place where a directive is meeting resistance. The administration is also facing repeated findings that it did not follow federal court orders.

In the case over Trump's plan to renovate a public golf course in Washington, DC, the administration cut down more than 430 trees without properly notifying US District Judge Ana Reyes. She said she was "furious" and ordered the work stopped.

Trump then said construction would begin "immediately." Reyes forced officials to testify and pressed Justice Department lawyers on their unwillingness to vouch for the administration's claims. The administration has accused her of "egregious" behavior and is seeking to remove her from the case.

The pattern is larger than one golf course. An Associated Press investigation published in May found that district judges ruled the administration violated court orders in at least 31 lawsuits over 15 months. Judges have found more than 250 additional examples of noncompliance in immigration cases. Many of the judges making those findings were nominated by Republicans.

A whistleblower claimed last year that a top Justice Department official spoke about a possible need to ignore court orders. That is an allegation, and the whistleblower's account is the only basis for it.

The record on consequences is thin. Early in Trump's second term, a federal judge in Rhode Island found the administration had violated an order to unfreeze federal grants. He declined to hold it in contempt but warned that people who make private determinations of the law "risk criminal contempt even if the order is ultimately ruled incorrect," quoting a 1975 Supreme Court ruling.

Judge James Boasberg found "probable cause" for criminal contempt after deportation flights to a prison in El Salvador continued despite his order to turn the planes around under the Alien Enemies Act. He opened contempt hearings.

The administration's stated position in the golf course case is that the judge's conduct was out of bounds, which is why it wants her off the case.

What comes next

The Navy and Marine Corps secretaries have the authority to overturn the board recommendations, and the Pentagon has not said whether it will release full hearing figures. In Washington, the administration's request to remove Judge Reyes is pending before the court. Both disputes turn on one question: what happens when a binding instruction is ignored by someone with the power to ignore it.