With the Senate's vote for an anti-trans military bill, Joe Biden has to make a choice

Signing the NDAA into law with a ban on some trans care for service members' kids would be a horrible move from Biden, and a sadly full-circle moment for America.

President Joe Biden at the Respect for Marriage Act signing ceremony ot the South Lawn of the White House on Dec. 13, 2022.

On Wednesday, the U.S. Senate passed the National Defense Authorization Act on an 85-14 vote, with one senator not voting. The bill, already passed by the House, includes a provision banning coverage of certain gender-affirming medical care for service members’ transgender children under the military’s Tricare health care program.

The bill, with the anti-trans provision in it, now goes to President Biden, who must choose whether to sign anti-trans legislation into law as one of his last major acts as president.

Taken down to it’s simplest description, it is a shocking move pressed by House Speaker Mike Johnson — taking away an existing medical benefit for service members.

Sen. Tammy Baldwin, a lesbian and the first out LGBTQ member of the Senate, led an unsuccessful effort to strip the anti-transgender provision from the bill. She highlighted accurately that the provision was incredible for the fact that it would “rip away the rights of our service members” in legislation the passage of which is most often used by members as annual proof of how much Congress values the military and military service.

“Despite all of the common ground that we found” in putting the military bill together, Wisconsin’s senior senator said in a fiery speech on the floor, “some folks poisoned this bill and turned their backs on those in service and the people that we represent.”

Noting that she always had supported the NDAA in the past, Baldwin in her floor speech discussed the “very quintessential ‘country over party’ deal” that animated bipartisan support for the bill traditionally. She continued:

This year, that commitment to our service members, to the people we all represent and to our security and safety was broken. It has been broken because some Republicans decided that gutting the rights of our service members to score cheap political points was more worthy.

Let's be clear. We're talking about parents who are serving our country in uniform, having the right to consult with their family's doctor and get the health care they want and need for their transgender children. That's it.

They want the right to get whatever health care is best for their child, something I imagine all parents want, and the health care we are talking about here can sometimes be lifesaving. Some folks estimate that this will impact between 6,000 and 7,000 families in the military. I, for one, trust these service members and their families to make their own decisions about health care without politicians butting in.

It's flat-out wrong to put this provision in this bill and take away a service member's freedom to make that decision for their families.

She noted that 20 senators joined her on an amendment to strip the provision from the bill (and four others had joined since), but, ultimately, no amendments to the House-passed version got a vote. After cloture was invoked and it was clear the provision would remain in the bill, that is when Baldwin took to the floor. Others also spoke out, including Sens. Andy Kim, Mazie Hirono, and Ed Markey.¹

“We shouldn’t play politics with our national security,” Kim said. “We shouldn’t target transgender youth, and further spread fear into a community that has seen so much hate directed towards it. We should pass an NDAA that supports our service members and their families, all of them, without politics or prejudice.”

It was Kim’s 10th day representing New Jersey in the Senate, although he had previously served in the House.

“We didn’t have to do this,” Hirono, the Hawaii senator who often serves as a strong voice against anti-LGBTQ discrimination, said. “We didn’t have to impose this cruelty on our service members and their families.”

When it came time for the final vote, only Sens. Cory Booker, Jeff Merkley, Bernie Sanders, Adam Schiff, Debbie Stabenow, Elizabeth Warren, Peter Welch, and Ron Wyden joined them from the Democratic side of the aisle in opposing the NDAA. On the Republican side, Sens. Mike Braun, Mike Lee, and Rand Paul opposed the bill, though not likely because of the inclusion of the anti-trans provision.

Markey of Massachusetts, looking back, said in his floor speech, “If passed into law it would be the first anti-LGBTQ law passed by Congress in decades — since the 1990s.”

On September 10, 1996, the U.S. Senate passed the Defense of Marriage Act on an 85-14 vote, with one senator not voting. The bill, already passed by the House, then went to then-President Bill Clinton.

Clinton signed DOMA into law later that month. The law banned federal recognition of same-sex couple’s marriages and purported to allow states not to recognize marriages legally entered into by same-sex couples elsewhere.

It would be more than 15 years before the Supreme Court struck down the federal recognition ban in DOMA as being unconstitutional in 2013 and nearly another decade after that before Biden, after originally voting for the bill as a senator in 1996, signed the Respect for Marriage Act into law formally repealing DOMA in 2022.

At that signing ceremony on the South Lawn of the White House on December 13, 2022, Biden told the many assembled that that day’s action was not enough.

“We need to challenge the hundreds of callous and cynical laws introduced in the states targeting transgender children, terrifying families and criminalizing doctors who give children the care they need,” Biden said. “And we have to protect these children so they know they are loved and that we will stand up for them ….”

Now, Biden has his chance to do so.

1. This paragraph was updated after initial publication to provide additional information, with the final update at 2:55 p.m.