Trump’s Trans Military Ban Was Just Dealt a Huge Blow
It’s been a bad day in Trumpland. It started first thing in the morning, with former Trump campaign chair Paul Manafort and his associate Rick Gates being indicted for money laundering, among other things. Shortly afterward, we learned that one of Trump’s former foreign policy advisers pled guilty to lying to FBI agents about his contacts with Russia during the campaign.
The afternoon brought more bad news for the administration, though on a different front: A federal court stopped Trump from carrying out a ban on transgender individuals in the military, one of the president’s high-profile policy changes. The decision from the federal district court in the District of Columbia temporarily puts Trump’s ban on hold.
To refresh your memory about the ban, over the summer Trump tweeted:
“After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow transgender 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 in the military would entail. Thank you.”
Later in the summer, Trump and Secretary of Defense James Mattis issued further clarifying statements and memos, but the bottom line remained the same: trans individuals could not enter the military, and those already in the military would be discharged. As a result, several current transgender members of the military, along with others who wanted to join, sued the president and the Department of Defense in federal court.
Monday’s decision, though not a final determination about the case, tells the Trump administration that it is very likely to lose the case. The crux of the decision is that the new policy violates the Constitution’s guarantee of equality, in two ways. First, it discriminates based on an individual’s status as transgender. Although there are very few cases that have addressed anti-trans discrimination under the Constitution, the court found that trans individuals should be protected from unconstitutional discrimination just like other groups that are identifiable, have a history of discrimination against them and are relatively politically powerless. The court Monday found that trans people easily fit within this description and deserve constitutional protection. This part of the decision is incredibly important going forward for other forms of anti-trans discrimination.
The court didn’t stop there though. Probably recognizing that the anti-trans discrimination part of the decision was going out on a limb and might be reversed on appeal, the court also found that this case involves discrimination based on sex and gender. Long-standing Supreme Court caselaw has held that discrimination based on someone’s sex is usually unconstitutional. The court here said that even though the policy is about someone’s identity as trans, the basis of the discrimination is sex and gender. As the court wrote, the policy “inherently discriminates against current and aspiring service members on the basis of their failure to conform to gender stereotypes. The defining characteristic of a transgender individual is that their inward identity, behavior, and possibly their physical characteristics, do not conform to stereotypes of how an individual of their assigned sex should feel, act and look.” Thus, this is a form of sex discrimination that the Constitution also prohibits.
Both of these theories are hugely important developments in the law. If either or both are adopted by courts across the country – and ultimately the Supreme Court – they would mean trans individuals would be protected from discrimination in housing, education, employment and other areas of life, just like many other protected groups. As it stands, this area of the law is still developing. Monday’s decision has the potential to more quickly push the U.S. toward a more just view of anti-trans discrimination.
More concretely, the decision stops the Trump administration from implementing yet another unconstitutional policy. If you add in the indictments and guilty plea, Monday was a reminder that, for now, the courts are still America’s best firewall against the Trump administration’s march to authoritarianism.