Military rule may be hard to block in courts
President Trump’s newly announced ban on transgender people in the armed forces — assuming his tweets become official policy — will be promptly challenged in federal courts, which traditionally have deferred to the executive branch on questions of fitness for military service.
That deference isn’t deterring advocates for transgender service members and prospective recruits.
“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 Trump’s early-morning an-
nouncement. “The military has to comply with the constitutional requirements of equal protection and due process.”
Lawsuits are also planned by the gay-rights group Lambda Legal.
“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 Law School.
“The government has very broad discretion in this area, and federal courts are extraordinarily deferential to governmental decision-making on military policy,” Fidell said. While he considers Trump’s policy “misguided,” he said it would be “hard litigation to try to overturn this.”
Transgender men and women have been serving openly in the military since June 2016, when President Barack Obama’s administration ordered a halt to their expulsion. The Rand Corp. has estimated that up to 6,000 active-duty members of the armed forces are transgender, while the Williams Institute at UCLA Law School has put the figure at more than 15,000.
So far, surveys commissioned by the Pentagon have found no harm to military morale or effectiveness.
“The Department of Defense found minimal costs, minimal effects on readiness, which Trump is not acknowledging,” said Ryan Thoreson, a researcher with the advocacy group Human Rights Watch.
Trump’s Twitter proclamation that the government would no longer “allow Transgender individuals to serve in any capacity in the U.S. Military” will take effect only after the Defense Department adopts a formal policy.
Trump spokeswoman Sarah Huckabee Sanders said later Wednesday that the Pentagon and the White House would work to “lawfully determine” how to implement the ban.
At that point, the service branches would begin identifying and removing transgender service members and prohibit their enlistment. Procedures for transgender enlistment were part of the Obama administration’s June 2016 order that were scheduled to take effect this month, but were postponed for six months by Trump’s defense secretary, James Mattis, before Wednesday’s announcement.
Fidell said current service members could try to contest their expulsions in military tribunals known as Boards of Correction, whose decisions can be appealed in federal court. But he said their most likely prospect for success in those cases would be to recoup the salaries they would lose for the time left on their enlistment contracts, or, for those nearing retirement, perhaps permission to stay long enough to qualify for a pension.
In non-military cases, an increasing number of federal courts have ruled that civil rights laws against sex discrimination apply to gender identity — an issue the Supreme Court had agreed to review this year before Trump withdrew guidelines Obama had issued supporting transgender advocates in those cases. But Fidell said those civil rights laws don’t apply to uniformed military personnel.
Instead, those challenging Trump’s decree will rely on constitutional rights such as equal protection and due process of law, which apply to all government institutions.
Federal courts paid little heed to those doctrines during the decades of racial segregation in the U.S. military, which was ended only by an executive order from President Harry Truman — exactly 69 years ago Wednesday. But constitutional standards in cases of alleged bias had become more robust by the time gay-rights advocates challenged “don’t ask, don’t tell,” the 1993 law barring gays and lesbians from serving openly in the military.
In a September 2010 ruling, U.S. District Judge Virginia Phillips of Riverside said lesbian and gay service members had shown that the 1993 law was “infringing their fundamental rights,” including privacy, autonomy and freedom of expression, and was harming the armed services. She said government lawyers had failed to show that the law protected military readiness and unit cohesion, the same rationales now offered for a transgender ban.
The Ninth U.S. Circuit Court of Appeals in San Francisco later said Phillips had stated adequate grounds for a nationwide injunction. But by then, the Democratic-controlled Congress had voted to repeal “don’t ask, don’t tell,” and the law expired in September 2011 without a Supreme Court decision on the military’s authority to determine the sexual orientation of its service members.
The transgender military case will encounter a familiar defense, said Devin Schindler, a constitutional law professor at Western Michigan University — government officials have justified racial segregation and restrictions against women and gays and lesbians in the armed forces by arguing that inclusion would be disruptive, expensive and demoralizing.
The crucial question, he said, will be whether the court requires the Defense Department to provide a strong reason for its policy, the standard for other excluded groups, or settles for any rational justification. And even at the lowest level of scrutiny, Schindler said, “there remain serious questions as to whether the increased cost and disruption cited by President Trump are in reality a problem.”