On Friday night, the Trump administration released its plan to exclude transgender troops from the armed forces. Nothing will change for now: Four federal courts have blocked the Pentagon from discriminating against transgender individuals, and those orders remain in place. In fact, it is doubtful that this plan, or any effort to ban transgender troops, will ever take effect. Those federal courts have found that discrimination against trans service members violates the Constitution, and the new proposal does nothing to ameliorate the ban’s grave constitutional flaws. Instead, the policy issued by the White House on Friday combines anti-trans propaganda with baseless, discredited concerns about the alleged danger of open transgender service. That might satisfy Trump’s base. It will not satisfy the federal judiciary.
Trans service members have been allowed to serve openly and receive transition-related health care since June 2016, under a policy instituted by former Secretary of Defense Ashton Carter. That policy was instituted as a result of multiple studies conducted and commissioned by the armed forces, including a landmark RAND study which found transgender service does not undermine readiness and unit cohesion or impose undue costs. Trump decided to repeal the policy and bar trans service members in order to shore up political support.
The president announced the ban on Twitter in July, then directed Secretary of Defense James Mattis to “study” the issue and make recommendations. But the president quickly faced legal impediments, with those four federal courts blocking the policy after finding it to be an “arbitrary,” “capricious,” and unjustified infringement on trans people’s constitutional right to due process and equal protection. As a result of those four court orders, transgender service members have continued to serve openly, and trans individuals have been allowed to enlist in the military since Jan. 1, 2018.
Yet behind the scenes, a “panel of experts” has been crafting a report, also released on Friday, designed to provide pretextual justification for Trump’s ban. According to multiple sources, Vice President Mike Pence played a leading role in the creation of this report, along with Ryan Anderson, an anti-trans activist, and Tony Perkins, head of the Family Research Council, an anti-LGBTQ lobbying group. Mattis actually supports open transgender service, but he was effectively overruled by Pence, and chose not to spend his limited political capital further defending trans troops. In a memo released on Friday, Mattis encouraged Trump to ban transgender people from enlisting in the military, and to discharge those service members who wish to transition. Trump has now formally adopted these suggestions.
Given its authors, the Trump report’s conclusions are unsurprising. It claims transgender service members “undermine readiness,” which is demonstrably false. The RAND study carefully analyzed the armed forces of Australia, Canada, Israel, and the United Kingdom after each country legalized open trans service, and it found these policies had no impact on “readiness.” Yet the Trump report disavows this conclusion by pointing out that each country reported some initial “resistance in the ranks”—which, it argues, “is a strong indication of an adverse effect on unit cohesion.”
Courts are unlikely to find that this concern justifies Trump’s ban. Private prejudice against transgender people cannot justify invidious discrimination, and former military leaders have already testified that the trans-inclusive policy had no deleterious effects. Moreover, this claim is padded out with language questioning whether treatment genuinely helps transgender people, asserting that their “high rates of mental health conditions” are not truly allayed by transition. This is dangerous nonsense; transition care has proved highly effective at treating gender dysphoria and accompanying conditions. Yet the new policy would prevent trans service members from transitioning, thereby forcing them to continue living with a treatable condition.
The Trump report also claims that trans service would “erode reasonable expectations of privacy” by “blurring the line that differentiates the standards and policies applicable to men and women.” This section reads like previous statements by Pence, Anderson, and Perkins regarding the putative perils of transgender bathroom usage. Once again, experience counsels that these fears are unjustified. Trans service members have been serving openly for nearly two years, and the ostensible privacy violations identified in the Trump report have not come to pass.
Finally, the Trump report alleges that trans service “imposes disproportionate costs” by imposing a “negative budgetary impact” due to the medical needs of transgender service members. How much of a negative budgetary impact are we talking about? The report doesn’t say, or even estimate. But a study published in the New England Journal of Medicine found that a transgender service member costs the military roughly 22 cents per month. That figure is, of course, extraordinarily low. It is especially ironic to see Trump use budget concerns to justify this ban as he plans a pointless and exorbitantly expensive military parade.
The report encourages Trump to ban openly transgender people from entering the military; discharge current service members who come out as transgender, unless they agree not to transition; and allow those individuals who came out under the previous policy to remain enlisted, with full access to health care. That last prong theoretically protects the roughly 8,980 trans troops currently serving. It represents an effort to satisfy judicial concerns over the Pentagon potentially punishing those who relied on the old policy; due process concerns are heightened when the government breaks a promise upon which citizens reasonably relied. And the entire reports mark an attempt to retroactively justify Trump’s ban by lending it a sheen of reason and legitimacy.
Will it work? Probably not. Several federal judges, including U.S. District Judge Colleen Kollar-Kotelly, have found that the transgender troops ban constitutes sex-based discrimination and discrimination on the basis of a “suspect classification.” Under the Fifth Amendment’s equal protection component, such discrimination triggers “intermediate scrutiny” and requires an “exceedingly persuasive justification.” This justification cannot rely upon prejudices, stereotypes, or unsupported assumptions—yet that is all the administration uses to defend its ban. Furthermore, even if the ban were not subject to heightened scrutiny, Kollar-Kotelly suggested that it was so plainly motivated by irrational animus that it could not survive any level of review. There is virtually no chance Kollar-Kotelly will find that this new report resolves the constitutional infirmities inherent in the ban.
Nor will the U.S. Court of Appeals of the District of Columbia Circuit, the court above Kollar-Kotelly, lend much credence to the report. In December, the D.C. Circuit refused to stay her decision blocking the ban, essentially endorsing her reasoning. The court concluded with a tribute to transgender service members:
It must be remembered that all plaintiffs seek during this litigation is to serve their nation with honor and dignity, volunteering to face extreme hardships, to endure lengthy deployments and separation from family and friends, and to willingly make the ultimate sacrifice of their lives if necessary to protect the nation, the people of the United States, and the Constitution against all who would attack them.
These are not the words of a court that will affirm the constitutionality of a trans troops ban because the vice president and his confidants dressed it up in pretext. If the Trump administration wants this policy to take effect, it will have to ask permission from the U.S. Supreme Court. I am skeptical that a majority of justices would grant that request, given that such a decision would upend the status quo, abruptly scrapping a policy that has run smoothly for almost two years. But it now seems inevitable that the Supreme Court will eventually have to resolve this issue for good.
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