Dustin from San Francisco writes: “Chris, I am outraged that Trump has banned transgender people from serving in the military. Is this constitutional?”
Thank you Dustin for your timely question. I share your outrage. I am proud to have championed transgender rights. I have assisted courageous transgender persons in safeguarding their rights and ending discriminatory policies and practices by the government, professional associations, hospitals and employers. My clients have shared with me the pain and emotional turmoil they have suffered from being marginalized and treated unfairly because of their gender identity.
Last week, President Trump announced on Twitter that he “will not accept or allow transgender individuals to serve in any capacity in the U.S. military.” President Trump claimed that he had consulted with the military and justified his decision based on “tremendous military costs and disruption that transgender in the military would entail.”
It became immediately obvious that President Trump had not consulted with the military. General Joseph F. Dunford Jr., the chairman of the Joint Chiefs of Staff, informed the military service chiefs the following day that the policy on who can serve would not change until the White House sends the Defense Department new rules and the secretary of defense issues new guidelines. “In the meantime, we will continue to treat all of our personnel with respect,” General Dunford stated.
The stated rationales – reducing costs and promoting military readiness – for President Trump’s abrupt announcement, like much of what he says, are without foundation. While no precise data is kept, several thousand transgender persons, perhaps as many as 15,000, serve in the active military and reserves. The annual cost for gender-transition treatment for transgender service members is estimated at $8.4 million. In comparison, according to a report by the Military Times, the armed forces spends $84 million per year on medications for erectile dysfunction—10 times the cost of medical care for transgender service members and an infinitesimal amount within the Department of Defense’s $17 billion annual budget for medical care for service members.
The integration of transgender troops in the armed forces of other nations has had no negative effect on unit cohesion or morale. Former Chairman of the Joint Chiefs of Staff Admiral Mike Mullen has testified, “an inclusive policy for transgender troops promotes readiness.” This is why on June 30, 2016, then-Secretary of Defense Aston Carter announced that “transgender Americans may serve openly, and they can no longer be discharged or otherwise separated from the military just for being transgender.”
Under the U.S. Constitution, the President is designated as the Commander in Chief of the armed forces. Does this provide President Trump unchecked constitutional authority to discriminate against transgender persons serving in the military?
The answer is no. First, the control of the military under the U.S. Constitution is shared by the executive and legislative branches. Under Article I, Section 8 of the Constitution, Congress may raise, organize and support armies. Congress has used this authority to establish criteria and standards for service in the military, and authorized the Secretary of Defense to prescribe policies and regulations for the military. 5 U.S.C. Section 301. If the Department of Defense follows through on President Trump’s declaration to ban all transgender military personnel, Congress could delay or even undo it.
Second, the judiciary can serve as a check on the President’s control over the military. We may forget, but it was less than a decade ago that gays and lesbians were barred from openly serving in the military on the basis that they posed an unacceptable risk to military morale, discipline and cohesion. While the initial lawsuits challenging the military’s Don’t Ask, Don’t Tell (DADT) policy were unsuccessful, the matter was never decided by the U.S. Supreme Court.
Subsequent court challenges to DADT, however, showed greater promise. In Log Cabin Republicans v. U.S., the U.S. District Court found that the DADT violated the substantive rights of LGBT personnel including “freedom of thought, belief, expression, and certain intimate conduct.” The case was on appeal when Congress passed legislation signed by President Obama that repealed DADT. As result, the District Court’s decision was vacated as moot.
The legal arguments, however, that found success before the federal court in Log Cabin Republicans v. U.S. could be advanced in challenging President Trump’s new policy. The blanket prohibition on any transgender persons relies upon the same discredited rationale used to justify past discrimination against racial minorities, women, and gays and lesbians from serving in our armed forces. President Trump’s true motivation is animus and prejudice which cannot serve as the basis for any governmental policy under the Constitution.