Military transgender ban would be tough to overturn, experts say
President Donald Trump's newly announced ban on transgender people in the armed forces, assuming his tweets become official policy, willbe promptly challenged in federal courts, which traditionally have deferred to the executive branch in questions offitness for military service.
That deference isn't deterring advocates for transgender service-members and prospectivere cruits.
``The U.S. government cannot discriminate against anyone because of their gender identity,'' Shannon Minter, legal director of the National Center for Lesbian Rights in San Francisco, said Wednesday after Mr. Trump's earlymorning announcement. ``The military has to comply with the constitutional requirements of equal protection and due process.''
Lawsuits are also planned by the gay-rights group LambdaLegal.
``The military has been made stronger by allowing transgender people to do their job without worrying about being discovered,'' said Peter Renn, a Lambda Legal attorney. ``The government will argue deference, but deference doesn't mean abdication, that you run roughshod over people's rights.''
But it does mean the cases will be tough to win, said Eugene Fidell, a longtime attorney and commentator on military law who teaches courses in the subject at Yale LawSchool.
``The government has very broad discretion in this area and federal courts are extraordinarily deferential to governmental decision-making on military policy,'' Mr. Fidell said. While he considers Mr. Trump's policy ``misguided,'' he said it would be ``hard litigation to try to overturn this.''
Top Pentagon leaders declared Thursday they’d allow transgender troops to remain in uniform until Defense Secretary Jim Mattis receives an authoritative directive to remove them.
Transgender men and women have been serving openly in the military since June 2016, when then-President Barack Obama's administration ordered a halt to their expulsion. (In fact, “there have been women serving in men’s dress in armies since the beginning of wars,” said Elizabeth Leonard, a professor of history at Colby College.) The Rand Corp. has estimated that up to 6,000 activeduty members of the armed forces are transgender, while the Williams Institute at UCLA Law School has put the figure at more than 15,000.