Overnight Defense

Overnight Defense: Biden lifts Trump's transgender military ban | Democrats, advocates celebrate end of ban | 5,000 guardsmen staying in DC through mid-March

Happy Monday and welcome to Overnight Defense. I'm Rebecca Kheel, and here's your nightly guide to the latest developments at the Pentagon, on Capitol Hill and beyond. CLICK HERE to subscribe to the newsletter.

THE TOPLINE: President Biden has repealed the transgender military ban.

Biden signed an executive order Monday making it U.S. policy that "all Americans who are qualified to serve in the Armed Forces of the United States should be able to serve" and revoking former President Trump's orders that instated the ban.

Biden signed the order in the Oval Office after a meeting with newly minted Defense Secretary Lloyd Austin. They were joined by Chairman of the Joint Chiefs of Staff Gen. Mark Milley and Vice President Kamala Harris, wearing masks and standing a socially distanced length away from each other.

"What I'm doing is enabling all qualified Americans to serve their country in uniform and essentially restoring the situation ... where transgender personnel, if qualified in every other way, can serve their government in the United States military," Biden said before he signed the order.

"This is the right thing to do," Austin said in a written statement after the order was signed. "It is also the smart thing to do."

What it does: Biden's order directs the Pentagon and Department of Homeland Security, under which the Coast Guard falls, to ensure all policies are consistent with the order. It gives them 60 day to report back to Biden on their progress doing so.

It also immediately bans involuntary separations, discharges and denials of reenlistment based on gender identity. Troops will be able to serve in their gender identity when they complete their transition and their gender has officially been changed in the Defense Department's personnel system, according to a fact sheet.

The order further requires the Pentagon to review records of service members who were discharged or denied reenlistment under the ban.

In his statement, Austin said the Pentagon will "immediately take appropriate policy action to ensure individuals who identify as transgender are eligible to enter and serve in their self-identified gender," Austin said. Recruits will be able to serve in their gender identity when they meet all applicable accession standards, he added.

The policy will also ensure all medically necessary transition-related care is available to service members, he said.

The brass reacts: Chief of Naval Operations Adm. Michael Gilday, who became the Navy's top officer during the Trump administration, put out a statement lauding the order as "the right thing to do."

"Today's transgender policy change eliminates an unnecessary barrier to service and ensures we are able to carry out our mission with the best-qualified and most-capable sailors regardless of gender identity, sexual orientation, gender, race, or creed," Gilday said.

"I'm absolutely confident in the ability of our sailors - active and reserve, uniform and civilian - to implement this policy in a manner that both protects the readiness of the force and also upholds values cherished by our service," he added.

Lawmaker reaction: Democrats celebrated Biden's move Monday.

"Today, by reversing the harmful, discriminatory policy of the previous administration, President Biden has ensured that thousands of transgender service members will be able to serve as their authentic selves," House Armed Services Committee Chairman Adam Smith (D-Wash.) said in a statement Monday. "The Biden administration's commitment to these brave service members - and their fair treatment under the law - underscores the immense value of each and every man and woman who serves or will serve our country in uniform, regardless of their sex assigned at birth."

Sen. Jack Reed (D-R.I.), incoming chairman of the Senate Armed Services Committee, said Biden's order "ensures that patriotic, talented transgender Americans have the opportunity to openly serve in our Armed Forces and contribute to our national defense. We must not allow bigotry to impede our military's critical mission." 

Sen. Kirsten Gillibrand (D-N.Y.), incoming chair of the Senate Armed Services Committee's personnel subpanel, said she is "proud that our armed services will once again embrace the principle that anyone who can meet military standards should be allowed to serve, regardless of gender identity."

Rep. Jackie Speier (D-Calif.), chair of the House Armed Services Committee's personnel subpanel, pledged to take further action to ensure open service is enshrined in law.

"We must make sure that future presidents do not backslide on our values of equality and inclusion, and I intend to add a provision to this year's defense policy bill to secure a permanent policy of nondiscrimination for our armed forces," Speier said in a statement.

Advocate reaction: Those fighting the ban, who have been urging Biden to act quickly, also unsurprisingly hailed Monday's action.

"Today, those who believe in fact-based public policy and a strong, smart national defense have reason to be proud," Palm Center Director Aaron Belkin said in a statement. "The ban will now be replaced with a single standard for everyone that, as in the successful previous policy, will apply equally to all service members. This is a major step in the defense not only of America but of American values. We look forward to a speedy implementation of inclusive policy."

"It is my highest goal to serve my country in the U.S. military and I've fought this ban because I know that I am qualified to serve," Nicolas Talbott, a transgender man who was in the Army ROTC program at the time the ban took effect and is a plaintiff in a lawsuit against the policy, said in a statement. "I'm thrilled and relieved that I and other transgender Americans can now be evaluated solely on our ability to meet military standards. I look forward to becoming the best service member I can be."

Four lawsuits were filed against the Trump administration's policy. Lawyers in the cases have said they expect the suits to be resolved when Biden reverses the ban.

"President Biden's order allows us to put this shameful episode behind us and marks the beginning of a much brighter era in which military service is once again based on a person's qualifications, not on who they are," said Shannon Minter, legal director of the National Center for Lesbian Rights and co-counsel in Talbott's suit. "Transgender people have proved their fitness to serve and ask nothing more than the opportunity to do so based on the same standards that apply to others."

The American Civil Liberties Union, which is leading another of the lawsuits, said that cases seeking an end to the ban will be moot once the Pentagon fully implements Biden's order and allows new transgender recruits to enlist, but stressed the organization would not hesitate to turn to the courts should there be any delay.

"Until all of the paperwork is finalized and they're able to enlist, those lawsuits still stay pending in the courts. So I think that we have the resources we need to hold the administration's feet to the fire if they for some reason go slower than they should," Josh Block, senior staff attorney with the ACLU's LGBT and HIV Project, told reporters on a conference call. "All indications are that it will be implemented without delay, but we still stand ready to ensure that that happens through the courts if necessary."

THE GUARD'S ENDURING PRESENCE: About 5,000 National Guard troops are slated to remain in Washington, D.C., until at least mid-March, the expected end date of Trump's impeachment trial, Pentagon officials confirmed Monday.

About 7,000 guardsmen from the D.C. National Guard and various states will stay for the next few days to provide support to local and federal law enforcement, acting Army Secretary John Whitley told reporters. From that, about 500 guardsmen will support U.S. Park Police and 550 will aid the Metropolitan Police Department.

Forces will then draw down to roughly 5,000 in early February and stay on until at least mid-March, with 600 troops assisting the Secret Service and 5,000 bolstering the Capitol Police.

Whitley said the Pentagon received four requests for the Guard to remain and provide assistance to the U.S. Park Police, U.S. Secret Service, Capitol Police and the D.C. Metropolitan Police Department (MPD) amid fears of threats to officials and the city in the wake of the deadly Capitol riots on Jan 6. 

"They're concerned that there could be situations where there are lawful protests - First Amendment protected protests - that could either be used by malicious actors or other problems that could emerge," Whitley said, but deferred to the FBI on the specifics of such threats.

COVID concerns: Major Gen. William Walker, the commanding general of the D.C. National Guard, also confirmed that nearly 200 of the guardsmen who have been sent to D.C. have tested positive for COVID-19.

"I am deeply troubled by the number," Walker said. "We follow the CDC guidelines, the Department of Defense protocols. We test and screen. However, we have that number."

Those who have tested positive are being quarantined until they are cleared to return to their home state, he added. Troops who were in close contact with those who have tested positive are also quarantining, Walker said, but he did not have the total number quarantining.

ON TAP FOR TOMORROW

Navy Vice Adm. Andrew Lewis, commander of U.S. Second Fleet, will participate in a panel on "Defending the seas: Gray-zone threats in the maritime domain" hosted by the American Enterprise Institute at 10:30 a.m. https://bit.ly/3aiBbK3

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-- Detroit Free Press: Transgender Michigan National Guard member to drop lawsuit in light of new Biden policy

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