Animus, Not Readiness: Trump & Mattis Move Full Steam Ahead on Unconstitutional Trans Military Ban

While it all started with an early morning tweet (as it so often does), this week President Donald Trump and Defense Secretary James Mattis both took steps to enshrine Trump’s impulsive decision to ban transgender people from serving in the military.  Contrary to much reporting, neither Trump’s memorandum to Mattis nor Mattis’s official statement represent a softening of Trump’s discriminatory policy.  Rather, in characteristically muddled form, they are a direct and immediate affront to transgender service members and prospective enlistees.  Here is why.

First and most clearly, Trump’s August 25th directive indefinitely extends the ban on transgender people enlisting in the military—a ban that was set to lift on July 1, 2017 after considered, rigorous study by the Department of Defense, but was temporarily delayed until January 1, 2018 by S Mattis.  Now, pursuant to Trump’s memo, the ban is again established policy with no sunset date unless and until the Secretary “provides a recommendation to the contrary that [Trump] find[s] convincing.”  How is that for an unattainable and arbitrary standard? 

Second, effective March 23, 2018, Trump’s directive requires that transgender people currently serving in the military be discharged.  Since at least June 30, 2016, transgender people already serving in the military have been permitted to do so openly and without fear of discharge.  Beginning March 23, 2018, they will be kicked out.  Trump’s memo to Mattis does not provide any discretion in this regard.  Instead, it merely permits Mattis discretion to figure out how to “address”—that is, discharge—transgender individuals currently serving in the military.

Consistent with that directive, Mattis announced on August 29th that he would “establish a panel of experts serving within the Departments of Defense and Homeland Security” to provide advice on how to implement Trump’s directive.  In other words, Mattis is simply doing what the President ordered—determining how to remove transgender service members.  He is not freezing or pushing back against Trump’s ban.  As further confirmation of this, Mattis emphasized that the experts would bring experience in “combat and deployed operations,” without mention of competing considerations such as human and constitutional rights.  (Make no mistake, as the Department of Defense’s prior analysis concluded, inclusion of transgender people in the military is no threat to readiness and, instead, ensures that the military is able to draw from the broadest pool of talent).   

Finally, Trump’s memo singles out and prohibits transgender people from receiving gender confirmation surgery, effective March 2018.

In short, the ban on enlistment/accession is in place now and will continue to be in place barring intervention by courts.  Currently serving transgender people will almost certainly face removal in March 2018.

And for that reason, new court cases filed variously by the National Center for Lesbian Rights & GLAD, Lambda Legal, the ACLU, are of critical importance.  In them, transgender service members powerfully explain how the President’s actions inflict immediate harm in the form of discrimination, stigma, and loss of liberty, implicating their constitutional rights to equal protection and substantive due process.

With respect to the equal protection claims, an increasing body of law recognizes that policies targeting transgender people are subject to heightened judicial scrutiny, either because the policies are inherently sex-based or because transgender status itself is a protected characteristic.  For example, the Seventh Circuit recently held in Whitaker v. Kenosha Unified School District that policies forbidding transgender students from using restrooms corresponding to their gender identity are sex-based and therefore subject to heightened scrutiny.

As such, the discriminatory policies must be justified by an important or compelling government interest and substantially related or narrowly tailored to achieve that interest.  Here, there is no such interest.  As the Department of Defense already concluded after thorough study, transgender people are an asset to the military—not the other way around.  And Trump’s politically-driven attempt to use transgender people as a wedge issue will hopefully be seen for what it is—animus, not readiness.

Image: Alex Wong/Getty

 

About the Author(s)

Scott Skinner-Thompson

Associate Professor of Law at Colorado Law