Is Banning Transgender Individuals from the Military Unconstitutional?

“After consultation with my [g]enerals and military experts, please be advised that the United States Government will not accept or allow [t]ransgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender [individuals] in the military would entail. Thank you[.]” @realDonaldTrump

A little over a year ago, on June 30, 2016, Defense Secretary Ashton B. Carter announced that transgender individuals could serve openly in the armed forces. He also said “the Pentagon would cover the medical costs of those in uniform who wished to undergo gender transition, and that [the Pentagon] would begin a yearlong training program for service members on the changes.”

Yesterday, President Donald J. Trump announced through a series of tweets that the United States will be prohibiting transgender individuals from serving in the military.

According to the December 2016 Department of Defense report, there are nearly 1.3 million active-duty military members. Of that, it is estimated that somewhere between 1,320 and 15,000 of those active-duty members are transgender.

Some supporters of this policy, like U.S. Representative Vicky Hartzler, say their concerns stem from the manner in which tax dollars are spent. “I had an intern that was denied the ability to go into the military because she had a bunion on her foot, and the argument was that this may cost the military, and she might have to have surgery,” Hartzler said. “[W]hy would we allow individuals to come in, although they’re very patriotic and we appreciate their desire to serve, but who have medical problems that could be very costly? We shouldn’t make an exception in this case.”

In contrast, some opponents of this policy, such as OutServe-SLDN (a legal services organization that advocates for LGBT active-duty personnel), say this policy is discriminatory. “The readiness, effectiveness, and lethality of the Armed Services comes from the commitment of our troops,” the organization said in a statement, “not the vagaries and bigotry of exclusionary policies.”

Despite President Trump’s tweets courting both praise and criticism, however, the tweeted policy does raise some constitutional questions.

To date, “neither the Supreme Court nor the Second Circuit has held that transgender plaintiffs are members of a protected or suspect class whose equal protection claims are entitled to heightened scrutiny.” For this reason, an Equal Protection analysis of the tweeted policy must be conducted through the lens of rational basis review.

In making this assessment, a court looks at whether the purposes of the tweeted policy are rationally related to some legitimate government interest. Because President Trump’s two stated reasons for the ban are “disruption” and “tremendous medical costs,” the courts could find these reasons to be rationally related to a legitimate government interest, thereby upholding the policy.

In contrast, the bare desire to harm a particular group of people does not constitute a legitimate government interest. If the tweets are read to mean that transgender service members “erode the fighting capability” of their combat units simply because they are transgender, the courts could deem this policy as one born of animus and strike it down as unconstitutional.

This morning, General Joseph Dunford, chairman of the Joint Chiefs of Staff, stated in a letter to military service chiefs that “the policy on who is allowed to serve will not change until the White House sends the Defense Department a rules change and the secretary of defense issues new guidelines.”


Sources Cited

White v. City of N.Y., 206 F. Supp. 3d 920, 933 (S.D.N.Y. 2016).