Donald Trump, who said he was going to be a better president for the LGBTQ community than Hillary Clinton, just announced that he wants to ban transgender persons from serving in the military. He justified the ban by referencing “tremendous medical costs and disruption.” His actions are outrageous, hateful, and, I argue, unconstitutional.
A few years after the United States repealed the discriminatory “Don’t Ask, Don’t Tell” policy, which prohibited gay and lesbian service members from serving openly in the military, the military leaders worked together to conduct an internal review on transgender service. As Admiral Mike Mullen, former head of the Joint Chiefs, noted: We “concluded that an inclusive policy for transgender troops promotes readiness.”
So, Trump isn’t doing this because of any real evidence that having transgender persons service in the military is a bad thing. There is, in fact, no such evidence, and the estimated 15,000 transgender service members in the military now prove as much. There is no disruption. There is no harm. In fact, as we learned during the DADT debate, allowing people to be who they are promotes readiness and strength.
Instead, Trump is doing this to please his base, who fear or hate queer individuals generally. He is doing this to distract from the horror he and his Republican allies are trying to create as they attempt to steal away healthcare from millions of Americans. He is doing this out of craven political gamesmanship, betting that socially conservative Rust Belt voters are going to sour on Democrats in Ohio and Michigan when they have to talk about transgender people.
Trump is also doing this because he doesn’t care about the rule of law. If and when this actually becomes real policy, it is, I argue, unconstitutional.
Discrimination on the basis of gender identity is a form of sex discrimination. And sex discrimination is an anathema under the Equal Protection Clause.
Think of it this way: A transgender person is one whose biological sex at birth does not match their gender expression. So, someone born with the sex organs of a boy identifies as transgender if that person’s identity (or, gender, if you will) is actually female. Under Trump’s proposed transgender military ban, someone born with the sex organs of a girl and identifies as a female can serve. But someone both with the sex organs of a girl and identifies as male cannot serve. That’s discrimination on the basis of sex: treating different sexes differently simply because of their sex organs.
Several courts have found that gender identity discrimination is actually sex discrimination for the purposes of Title VII, the workplace discrimination statute, and the Equal Protection Clause, the part of the Fourteenth Amendment that guarantees that all persons will be treated equally. If the government wants to treat people unequally on the basis of sex, it has to justify its policy with a substantial interest, a review process lawyers call “heightened” or “intermediate” scrutiny.
Trump’s justifications for this proposed ban do not meet heightened scrutiny. There is zero evidence of additional administrative and medical costs. And there is no disruption to the military. We’ve been through this before. Conservatives (and many Republicans still in Congress, including Senator John McCain of Arizona) fought tooth and nail against the repeal of DADT, arguing that the military unit would be disrupted and unit cohesion would break down if gay people were serving along with everyone else. No such disruption has occurred; no such disruption was ever going to occur. Their arguments were based on fear and, worse, hate.
The same is true here. Trump cannot justify his proposed ban with recourse to anti-trans animus or hypothetical costs. The ban will go down. But we have to fight.
Organizations like Lambda Legal are going to be the ones to challenge this policy if it ever makes it beyond Twitter. We need to support their work, with our money, our time, and our voices. #Resist.