Trump’s Proposed Transgender Ban Breaks Faith with Service Members

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President Trump’s transgender ban for the military is misguided and potentially illegal.

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President Donald Trump recently tweeted that the United States “will not accept or allow transgender individuals to serve in any capacity in the U.S. military” because American forces “must be focused on decisive and overwhelming victory.”

President Trump’s disconcerting tweet undercuts years of careful, considered work under the Obama Administration by Department of Defense Secretary Ashton Carter and the military service chiefs who sought to fully integrate transgender personnel into the nation’s Armed Forces. It also breaks faith with transgender service members who have been allowed to serve openly since July 2016 and have received critical gender transition military medical care pending full implementation.

Coming after a delay in following through on the Obama Administration’s implementation efforts, President Trump’s tweet, if it is put into effect by an official presidential directive, puts an end to transgender integration efforts in the Armed Forces. However, the Chairman of the Joint Chiefs of Staff, General Joseph Dunford, recently responded to the President’s tweets by stating that the military would make “no modifications” to its current policies until after it receives more formal guidance from the White House. Still, Trump’s announcement raises three major issues of concern, each with open questions remaining if the sentiments reflected in those tweets were to be implemented.

First, President Trump’s tweet states that the military will no longer “accept or allow transgender people from serving in “any capacity” in the U.S. military. This broad pronouncement appears not only to ban the recruitment of new transgender personnel, but also to put in motion the possibility of administrative discharge procedures for transgender personnel who already actively serve their country. This is particularly harmful for currently serving transgender service members who have received gender transition military medical care and have openly identified as transgender.

Indeed, these service members have in good faith continued their military service while relying on the Obama-era transgender integration plan to come to fruition. Under the Obama Administration, the Defense Department put in place a thoughtful timeline and plan to integrate transgender personnel fully into the military. Last year, the Defense Department announced that transgender personnel could openly serve. That assurance has been now seemingly taken away.

Additional questions arise about how current service members will be treated. What is the status of those personnel who have received gender transition medical care and are vulnerable to adverse health consequences if transition-related health services are halted suddenly? And how, exactly, will Trump’s tweet be implemented? Will administrative discharge proceedings be ordered for the estimated 11,000 active and reserve transgender personnel currently serving in the U.S. military? Any actual implementation of a transgender ban will be fraught with difficulties and legal minefields.

Second, by purporting to overturn the Obama-era transgender plan, Trump’s tweet creates greater uncertainty over critical military personnel policies, potentially undermining military readiness. The most exhaustive study on transgender service members, conducted by the RAND Corporation in 2016, estimated that fully integrating transgender military personnel would have a minimal impact on readiness at a relatively low cost.

The RAND study further noted that a ban on open service by transgender personnel may actually increase health costs due to worsening mental health status, declining productivity, and other negative outcomes from lack of treatment for gender identity-related issues. Service members—regardless of who they are—require consistency, stability, and faith in the civilian leadership to follow through on existing plans, particularly personnel policies that affect their individual health and ability to serve.

Third, unresolved equal protection and due process issues will only invite a greater role by the judiciary, serving to distract the Defense Department and creating further uncertainty. In light of anticipated litigation, Pentagon lawyers should re-familiarize themselves with Witt v. Department of the Air Forcea 2008 case from the U.S. Court of Appeals for the Ninth Circuit that was decided before the “Don’t Ask Don’t Tell” repeal.

In Witt, the court applied a heightened scrutiny standard to an Air Force officer’s due process constitutional challenge to the “Don’t Ask Don’t Tell” law. Under the heightened scrutiny standard, the government must advance an important governmental interest, the intrusion on one’s rights must significantly further that interest, and the intrusion must be necessary to further that interest. Although Witt applied the heightened scrutiny standard in a case involving a gay/lesbian service member, it remains unclear if a court would apply a similar standard to a prospective transgender litigant. But it could.

Outside of due process or equal protection claims like those presented in cases like Witt, a plaintiff likely would also assert that Trump’s purported transgender ban unconstitutionally reflects animus or ill will directed at transgender service members. This argument would be bolstered by the sheer breadth of the proposed ban, which prohibits transgender service in “any capacity.” The military has numerous administrative and non-combat roles; surely the Trump Administration could authorize transgender service in some capacity. Why mandate a total ban if the Administration’s motivation were anything other than animus?

In addition, fundamental notions of fairness and reliance come into play here—factors that would make prospective transgender plaintiffs quite sympathetic in the eyes of a federal court. Plaintiffs could assert that they detrimentally relied on the Obama-era policy that allowed transgender service members to serve openly. And such plaintiffs may have already begun receiving gender transition medical care in accordance with this guidance. To reverse the military policy would violate fundamental norms of fair play while placing transgender service members at medical risk if their care is stopped midstream. Indeed, a lawsuit was just filed by openly serving transgender service members who make similar equity arguments, asserting that the government can not rescind rights that have already been granted.

Lastly, recall that the oft-trotted out “readiness” concerns were raised in 2010 when the military moved away from the Don’t Ask Don’t Tell policy prohibiting gay and lesbian service members from serving openly. Those concerns proved groundless. The U.S. military seamlessly integrated gay and lesbian service members following the repeal of Don’t Ask Don’t Tell.

Indeed, the U.S. military has demonstrated a remarkable ability to adapt, change, and integrate people of different backgrounds, ethnicities, and sexual orientations throughout its history. The current policy that favors fully integrating transgender personnel into the military integration should not be any different—and it should remain in place.

Mark Nevitt

Mark Nevitt is a Sharswood Fellow at the University of Pennsylvania Law School.

This essay originally appeared in an abbreviated format on the University of Pennsylvania Law School’s website.