Penn Law faculty comment on President Trump’s ban on transgender individuals in the U.S. military.
“Transgender people have been serving openly and equally in the U.S. military for over a year. They served in silence for decades before that. They are as patriotic, dedicated and capable as any member of the Armed Forces. They have suffered, bled and died for this country. And now they are the latest targets of a flailing and failed president who uses Twitter to make policy based on his last conversation and uses insults to bully Senators from his own party and humiliate his own Attorney General. This is not governance. This is cynicism, ugliness, and chaos. Enough.”
“President Trump’s decision to reverse existing military policy and bar transgender individuals from the military is discriminatory and unjustified. A recent RAND Corporation study determined that transgender service members generated only minimal additional health care costs, and had no impact on unit cohesion and effectiveness. The President’s order ignores this evidence in service of apparently political ends.”
“After extensive study, and in consultation with a wide range of military, civilian, and medical authorities, the Department of Defense concluded last year that allowing transgender individuals to serve openly, subject to the same “rigorous standards for military service and readiness” as other servicemembers, would benefit the armed forces. This shift followed other significant advances in the Obama era, most notably the repeal of “Don’t Ask, Don’t Tell,” allowing gay and lesbian Americans to serve openly in the armed forces. Together, these developments are consistent with a growing consensus among federal courts and agencies that discrimination based on gender identity or sexual orientation is unlawful sex discrimination that unjustly excludes individuals from workplaces, schools, and public accommodations based upon factors that have no bearing on their character, talents, or ability to perform.
Today, President Trump casually announced via Twitter that he would reinstate a ban on transgender servicemembers, startling the Pentagon and drawing condemnation not only from civil rights organizations but from such veterans of the military and public service as Senate Armed Services Committee chairman John McCain. Trump cryptically cited “tremendous medical costs and disruption” as a justification for this abrupt reversal. Trump’s reference to medical expenses reflect myriad misconceptions, including his apparent assumption that individuals who identify as transgender always elect gender confirmation surgery or incur other significant medical costs as part of a transition, and moreover, that those who do seek medical intervention are somehow less deserving of necessary health care than other Americans.
The President’s reference to medical costs also echoes debates over the past half-century about women’s integration as equal members of the armed forces. Complaints about the costs of pregnancy in terms of medical expenses and lost time frequently surfaced among those who harbored reservations about women’s fitness to serve. The persistence of these complaints despite studies revealing that servicemen in fact lost more time overall than servicewomen—due to illness, temporary disability, substance abuse, and other factors—exposed ostensible concerns about cost as a smokescreen for bias. Charges that transgender servicemembers would be expensive and disruptive are even less credible, especially given extensive findings to the contrary by analysts who deliberated for many months before recommending that transgender Americans be allowed to serve openly. The courageous women and men who are willing to put their lives in jeopardy to serve our country deserve better from their commander-in-chief. We all do.”
“President Trump tweeted today that the United States will not “will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military,” and that American forces “must be focused on decisive and overwhelming victory.” Trump’s tweet seemingly negates years of careful, considered work under the Obama administration by Defense Secretary Ash 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 and have received critical gender transition military medical care pending full implementation. Coming after a delay in following through on the Obama implementation efforts, Trump’s tweet seemingly puts an end to transgender integration efforts in the Armed Forces. There are at least three reasons why Trump’s announcement is a cause for concern, with several open questions remaining.
First, President Trump’s tweet speaks to no longer “accept[ing] or allow[ing]” transgender people from serving in any capacity in the United States military. This broad pronouncement appears to not only ban the recruitment of transgender personnel (seemingly easier to implement) but also puts in motion the possibility of administrative discharge procedures for actively serving transgender service members. 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 membes have in good faith continued their military service while relying upon the Obama-era transgender integration plan to come to fruition.
Under the Obama administration, the Department of Defense (DoD) put in place a thoughtful timeline and plan to fully integrate transgender personnel into the military. Last year, the DoD announced that transgender personnel could openly serve. That has now been taken away. Additional questions arise: What is the status of currently serving transgender military personnel who have received gender transition medical care and are vulnerable to adverse health consequences if transition-related health services are suddenly halted? And how, exactly, will Trump’s tweet be implemented (is a tweet an order)? Will administrative discharge proceedings be ordered for the estimated 11,000 active and reserve transgender personnel currently serving in the United States military?
Second, by overturning the Obama-era transgender plan, Trump’s tweet actually creates 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. 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 DoD and creating further uncertainty. In light of anticipated litigation, lawyers should re-familiarize themselves with Witt v. Department of the Air Force a 2008 case from 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 statute. Under the heightened scrutiny standard, the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. While Witt applied the heightened scrutiny standard in a case involving gay/lesbian conduct, it remains unclear if a similar standard would apply to a prospective transgender litigant.
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. But the U.S. military seamlessly integrated gay and lesbian service members following the repeal of Don’t Ask Don’t Tell. Indeed, the United States military has demonstrated a remarkable ability to adapt, change, and integrate people of different background, ethnicities, and sexual orientation throughout its history. There is no reason to believe that the transgender policy integration would be any different.”