Outside the Beltway

Trump’s New Transgender Troop Ban Is As Unconstitutional As The First One

The President's new attempt to ban transgender Americans from serving in the military is as legally defective as the original ban was.

Doug Mataconis · Saturday, March 24, 2018 · 7 comments

As James Joyner noted earlier this morning, late yesterday President Trump issued a new order regarding transgender members of the U.S. military:

WASHINGTON — Transgender troops who are currently in the United States military may remain in the ranks, the White House said late Friday, but the Pentagon could require them to serve according to their gender at birth.

The policy recommendation that President Trump approved flatly states that “transgender persons who require or have undergone gender transition are disqualified from military service.” But it also largely gives the Pentagon the ability to make exceptions where it sees fit.

The policy adopts recommendations that Mr. Trump received last month from Defense Secretary Jim Mattis. It comes after court rulings froze the president’s initial ban on transgender troops — issued in July — as potentially unconstitutional.

“In my professional judgment, these policies will place the Department of Defense in the strongest position to protect the American people, to fight and win America’s wars, and to ensure the survival and success of our service members around the world,” Mr. Mattis wrote in a summary of his recommendations to the president.

The policy announcement outraged advocates for transgender troops, and the advocates vowed to fight the limits in court.

“There is no evidence to support a policy that bars from military service patriotic Americans who are medically fit and able to deploy,” said Aaron Belkin, the director of the Palm Center, which focuses on sexuality and the military. “Our troops and our nation deserve better.”

In a series of Twitter posts in July, Mr. Trump announced that “the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military.”

He said he decided to issue the ban after consulting with generals and military experts, although Mr. Mattis was given only a day’s notice. In August, Mr. Trump directed the Pentagon to reverse an Obama administration policy that had allowed transgender people — or those diagnosed with gender dysphoria, or had discomfort with their biological gender — to serve in the military.

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Mr. Trump’s new order allows the defense secretary and the homeland security secretary to “exercise their authority to implement any appropriate policies concerning military service by transgender individuals.”

In a memo to the president, dated Feb. 22, Mr. Mattis cited “substantial risks” about military personnel who seek to change or who question their gender identity.

He said that allowing some of them to serve would amount to an exemption of certain mental, physical and sex-based standards, and “could undermine readiness, disrupt unit cohesion, and impose an unreasonable burden on the military that is not conducive to military effectiveness and lethality.”

Mr. Mattis’s assertion contradicts a 2016 study by the RAND Corporation, which found that allowing transgender people to serve in the military would “have minimal impact on readiness and health care costs” for the Pentagon.

The study estimated that health care costs would rise $2.4 million to $8.4 million a year, representing an infinitesimal 0.04 to 0.13 percent increase in spending. It concluded that there were 2,000 to 11,000 active-duty troops who are transgender.

Citing research into other countries that allow transgender people to serve, the study projected “little or no impact on unit cohesion, operational effectiveness or readiness” in the United States.

Mr. Mattis, in his recommendation to Mr. Trump, complained that the RAND study “heavily caveated data to support its conclusions, glossed over the impacts of health care costs, readiness, and unit cohesion, and erroneously relied on the selective experiences of foreign militaries with different operational requirements than our own.”

“In short,” Mr. Mattis concluded, “this policy issue has proven more complex than the prior administration or Rand assumed.”

On Friday, Pentagon officials said they would continue to comply with federal law. A Defense Department spokesman said the Pentagon would “continue to assess and retain transgender service members.” The new policy must first be published in the Federal Register, which generally requires new rules to be reviewed and subject to a public comment period before they are enacted.

Mr. Trump announced the ban in July to resolve a quietly brewing fight on Capitol Hill over whether taxpayer money should pay for gender transition and hormone therapy for transgender service members.

But rather than addressing that narrow issue, Mr. Trump opted to upend the entire policy on transgender service members. His decision was announced with such haste that the White House could not answer basic questions about how it would be carried out, including what would happen to transgender people on active duty.

Now, eight months later, what will happen to transgender people on active duty is still unclear.

This new announcement, which is likely to be challenged in Federal Court just as the original order was, comes in the wake of two Federal Court rulings that resulted in the issuing of injunctions barring the enforcement of the Administration’s policy. Based on both of those rulings, it seems clear that the new policy is not likely to fare well in court when it is, as it inevitably will be, challenged.

In October, Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia issued a ruling barring the enforcement of Trump’s order and ordering the Defense Department to continue operating under the order issued by former President Obama in the summer of 2016. In her ruling, Judge Kollar-Kotelly noted that Trump’s ban was “not genuinely based on legitimate concerns regarding military effectiveness or budget constraints, but are instead driven by a desire to express disapproval of transgender people generally.”  She also noted that the justifications for the order  “do not seem to be supported by any facts,” and noted that instead “it appears that the rights of a class of individuals were summarily and abruptly revoked for reasons contrary to the only then-available studies.” Based on all of this, Kollar-Kotelly barred the enforcement of Trump’s order and ordered the Defense Department to continue operating under the pre-existing policy until there had been a final ruling on the merits.

One month later, in a case arising in the United States District Court in the District of Maryland, Judge Marvin J. Garbis issued an order substantially similar to Judge Kollar-Kotelly’s that also barred enforcement of the Administration’s order and compelling the Defense Department to continue operating under the pre-existing Obama era policies. In addition to adopting much of the reasoning that Judge Kollar-Kotelly did in her ruling, Judge Garbis’s order went further though in that it also prevents the administration from denying funding for sex-reassignment surgeries. As to the policy itself, Judge Garbis noted that the service members challenging the ban had “demonstrated that they are already suffering harmful consequences such as the cancellation and postponements of surgeries, the stigma of being set apart as inherently unfit, facing the prospect of discharge and inability to commission as an officer, the inability to move forward with long-term medical plans, and the threat to their prospects of obtaining long-term assignments.” Additionally, Judge Garbis made specific reference to the President’s tweets on the issue, noting that they “did not emerge from a policy review.” He also stated that a “capricious, arbitrary, and unqualified tweet of new policy does not trump the methodical and systematic review by military stakeholders qualified to understand the ramifications of policy changes.” As I noted at the time, this wasn’t the first time that the President’s Twitter feed ended up being cited by a Federal Judge, and its unlikely to be the last. Finally, Judge Garbis noted that the Trump Administration had not presented any justification for the policy change, and also noted that, contrary to what Trump said in his initial tweets on the topic, that neither the Secretary of Defense nor any other officials at the Pentagon had been consulted prior to the announcement of the policy. Based on all of this, Judge Garbis issued an order barring the enforcement of the new policy, and requiring the Defense Department to both continue operating under the Obama Administration’s policy and to continue funding medical treatment, including sex reassignment surgery in appropriate cases, for transgender troops.

Based on these rulings, which have yet to be ruled upon at the Court of Appeals level, it seems fairly clear that this new ban dropped by the Trump Administration late on a Friday night is as unconstitutional as the previous policy. As with the previous policy, the new ban does not appear to be based on any policy review but rather on an intent to discriminate against people simply because they are transgendered. Additionally, what available evidence there is seems to make it clear that allowing transgender service members to serve openly does not have any negative impact on unit cohesion or military readiness. Indeed, the only available study on the matter, which was conducted by the RAND Corporation in a report issued in 2016.  In that report, RAND found that there was no evidence that allowing troops to serve openly, and accommodating their medical needs up to and including sex-reassignment services where appropriate, would harm military readiness in any respect. In addition to the RAND study, we can also look to the experience of  dozens of nations around the world that allow open service by transgender troops. This list includes close American allies such as Australia, Austria, Belgium, Bolivia, Canada, Czech Republic, Denmark, Estonia, Finland, France, Germany, Israel, the Netherlands, New Zealand, Norway, Spain, Sweden and the United Kingdom. (Source) There is simply no factual basis for the contention that allowing transgender troops to serve openly will have any impact on military readiness, just as there was never any factual basis for the claim that allowing gays and lesbians to serve openly would have a negative impact. In the nearly eight years since that policy was lifted, in fact, we’ve seen no evidence of a negative impact at all.

In addition to this, the President’s own military advisers are on the record as stating that allowing transgender troops to serve openly would have no adverse impact on military operations.  In the immediate aftermath of the President’s announcement by Twitter of the policy changes, the military leaders at the Defense Department stated that current policy would remain in effect notwithstanding the President’s tweets unless and until a formal order was received from the White House. Shortly thereafter, the Commandant of the U.S. Coast Guard stated that his branch of the service would continue to follow the Obama Era policy until they receive a formal order to the contrary. After the Administration issued a formal order on the matter, Defense Secretary James Mattis announced that the Pentagon would allow transgender troops to continue serving while the issue was being studied. That statement was mistakenly interpreted by some media outlets and political pundits as Mattis essentially disobeying a Presidential Order. More recently, in February of this year, Secretary Mattis was reported to recommend to the President that transgender troops be allowed to continue serving openly in the military. In other words, as James notes in his post this morning, Trump’s new policy “contradicts the advice of all the sitting service chief and the only serious DOD-funded study on the matter.”

Based on all of this, it seems clear that the new policy will likely face the same fate in court that the first version did last year. I think we can expect pleadings on this matter to be filed in the cases pending in Washington, D.C. and Maryland in the very near future and, quite probably, new lawsuits filed on the matter post-haste. While one can never predict the outcome of such litigation before it’s even filed, I would expect that the results will be similar to what we saw in October and November of last year.