Got Your Six? Not In Trump’s America

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the position of JLIA, Penn State Law, School of International Affairs, or Pennsylvania State University.

 

On July 26^th, 2017, Donald Trump, acting in his capacity as Commander in Chief of the Armed Forces, announced a new policy in the current fashion for this administration, via Twitter, which would ban transgender people from serving in the military.[1] This new “Trans Ban” is a direct reversal of Obama-era policies.

On June 30^th, 2016, the Obama Administration announced that they would no longer discharge a member of the service for being openly transgender.[2] Following this, the Department of Defense announced that they would be accepting openly transgender troops into the service.[3] Within a year, on August 25^th, 2017, despite no knowledge on the part of the Joint Chiefs of Staff[4] and vehement opposition from members of both parties[5], Donald Trump signed an Executive Order[6] prohibiting transgender people from joining any branch of the military, and giving the Secretary of Defense, James Mattis, six months to determine how to deal with the openly transgender soldiers currently serving, and leaving their long term fate unknown. These soldiers however, are not fighting this battle alone.

The future of this attempt by the Commander in Chief to use the war powers to discriminate may hang in the balance, however, without those he intended to support him. Civil liberty watchdog groups are not the only ones denouncing the President’s ban.  Republican Senator John McCain has openly criticized the ban since the tweet guidance.[7] Senator McCain, who acts as Chair of the Senate Armed Forces Committee, stated, “Any member of the military who meets the medical and readiness standards should be allowed to serve- including those who are transgender.”[8] Senator McCain has also lent his support to a new bill to be introduced into Congress, which pushes back against the Trans Ban.[9] This new bill, created after failed attempts by senators to stop the Ban by adding an amendment to the fiscal year 2018 Defense Authorization Bill[10], would prohibit the Department of Defense from not allowing current transgender troops to reenlist and also speed up the clock for Secretary Mattis in determining the effects on military readiness that he is required to report by February of 2018.[11] If the Bill passes, Secretary Mattis would have to report the results of his review to Congress by the end of 2017.

Secretary Mattis issued a guidance memo on September 15^th, 2017 which stated that the Department of Defense, together with the Joint Chiefs of Staff, are convening a panel to discuss what the guidance will mean for transgender troops already currently enlisted, who relied on the Obama-era guidance in making their decision to serve openly as transgender.[12] In the meantime, Secretary Mattis confirmed that the Obama-era policies on transgender troops still hold, and that transgender soldiers may still continue to serve and receive proper medical care.[13] Secretary Mattis has said that he and the panel will create a plan that will “promote military readiness, lethality and unit cohesion”[14], but has not said if the Department of Defense has any idea what direction they will take regarding the currently enrolled soldiers.

While members of Congress are doing their best to fight for the rights of transgender soldiers currently enlisted, civil liberty groups are fighting for that and for the future of transgender people who desire to enlist. LGBT civil rights groups sued Donald Trump over this policy, some before the guidance even made its way to the Pentagon.[15] Others, like Lambda Legal[16] and the American Civil Liberties Union[17], waited until the Executive Order had been signed to sue. These groups cited Equal Protection and Due Process violations.[18] They cite documents that were prepared at the request of the Department of Defense during the Obama era, when they were considering allowing transgender people to serve openly in the service. This study, conducted by the RAND Corporation studied the effects on military readiness of allowing transgender people to serve openly and the costs of healthcare. They determined that healthcare costs were negligible[19] and looked to international examples to study the effects on military readiness.[20]

The Netherlands led the way in allowing transgender people to openly serve in 1974, and the other countries followed suit, including the United States last year. The study began with listing the eighteen countries that allow openly transgender people into their armed forces[21], and focused on the four most developed and long-term implementations of the policy in the Australian, Canadian, Israeli and United Kingdom armed forces. The study outlined the implementation of the policies and the long-term effects on readiness. They found that in all four countries, there was no report on any readiness or military operational effectiveness.[22] In fact, some leaders reported that the “increase in diversity has led to increases in readiness and performance.”[23] Through this research, the RAND Corporation recommended several best practices for the United States implementation of the policy, including diversity training, informed leadership, providing experts to commanders and promoting an inclusive environment.[24]

With the studies commissioned by the Department of Defense refuting the things that the Commander in Chief has cited as reason why they should not allow transgender service members to enlist, the law is on the side of those fighting for equality. While courts give great deference to the military and to anything that could be seen as a threat to national security, there is no reason to find in the favor of the Trump Administration when it comes to not allowing transgender people to enlist. In the Executive Order from the Trump Administration, the only reason given for the ban is that the Obama Administration did not have “sufficient basis to conclude that terminating the Departments’ longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources.”[25] This could not be further from the truth.

Prior to the Obama Administration’s repeal of the Department of Defense’s policy prohibiting transgender troops, they commissioned studies to assess if a repeal of the policy would affect all the things that Trump cited in his new Executive Order. Studies by the RAND Corporation, discussed supra, and the Palm Center helped assess the implications on readiness and effectiveness, and found that it would have no real impact. The Palm Center then, along with other transgender advocates, helped the Department draft standards to assuage the concerns about the medical needs of transgender troops. Per the newly drafted policy, transgender troops would have to be “stable without clinically significant distress or impairment in social, occupational or other important areas of function for 18 months.” They also must meet all other standards required for their respective positions in the service. Transgender advocates and experts on military readiness have supported all of these provisions.

And with respect to the concern of “taxing military resources”, a recent study by the Palm Center, assessed that it would cost the military $960 million dollars to discharge transgender troops (determining the number by calculating how much it would cost to recruit and train new members for the positions they would leave vacant [$75,000 per member x 12,800 active transgender members]).[26] The RAND Corporation study, discussed supra, assessed the cost of providing medical care to transgender troops to be $2.4-$8.4 million.[27] The cost-benefit analysis does not require an economist to interpret the results. The “taxing” of “military resources” would come with discharging these troops, not providing them with adequate medical care.

Without any data to back up the President’s reasoning for the Executive Order, when challenged in a court of law, he will not meet his standard of review. Generally, in cases regarding military policy, the courts have given extreme deference in upholding the choices of the armed forces and using strict scrutiny as their standard of review. This has lead to some devastating Supreme Court decisions in the past.[28] In order for it to hold under strict scrutiny, the action must have a compelling government interest and be narrowly tailored to achieve that interest. With all available data proving that allowing transgender troops to serve openly has no impact on military readiness and costs a fraction of what it would cost to discharge existing troops, the argument that the interest the government has in excluding them becomes less than compelling. And the half-baked guidance sent to the Pentagon that Secretary Mattis has to interpret for the confused military leaders could hardly be called narrowly tailored. Civil liberty watchdogs are likely to find themselves on the right side of history and easily overturn this ban as a matter of law.

While the current administration had made their disdain for the transgender community clear through the actions taken by the president and his chosen leaders for various administrative agencies, with this Ban, they are facing challenges from within their own party, overwhelming data on the side of the transgender soldiers and compelling histories of foreign militaries showing the success of allowing transgender people to serve openly. With the actions of the devoted Congress members fighting to keep those already enlisted in the service, civil liberty groups fighting for the equality promised to them by their government, and the breadth of studies from which the data is on the side of the soldiers, Trump’s Trans Ban will hopefully soon be a thing of the past.

 

About the Author: Kylee Reynolds is a 3L at Penn State Law. 

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[1] Donald J. Trump, (@realDonaldTrump), Twitter (July 26, 2017, 5:55am) https://twitter.com/realDonaldTrump/status/890193981585444864

[2] Press Operations, Secretary of Defense Ash Carter Announces Policy for Transgender Service Members, U. S. Department of Defense (June 30, 2016) https://www.defense.gov/News/News-Releases/News-Release-View/Article/821675/secretary-of-defense-ash-carter-announces-policy-for-transgender-service-members/

[3] Transgender Service Member Policy Implementation Fact Sheet, Department of Defense (September 13, 2016) https://www.defense.gov/Portals/1/features/2016/0616_policy/Transgender-Implementation-Fact-Sheet.pdf

[4] Barbara Starr et al., US Joint Chiefs Blindsided by Trump’s Transgender Ban, CNN (July 27, 2017) https://www.defense.gov/Portals/1/features/2016/0616_policy/Transgender-Implementation-Fact-Sheet.pdf

[5] Aaron Mak, Trump’s Transgender Troops Ban is Backfiring Among Congressional Republicans, Slate (July 27, 2017) http://www.slate.com/blogs/the_slatest/2017/07/27/trump_s_transgender_troops_ban_is_backfiring_among_congressional_republicans.html

[6] Donald J. Trump, Military Service For Transgender Individuals, Office of the Press Secretary (August 25, 2017) https://www.whitehouse.gov/the-press-office/2017/08/25/presidential-memorandum-secretary-defense-and-secretary-homeland

[7] Chris Johnson, McCain Co-sponsors New Bill Against Trump’s Trans Military Ban, Washington Blade (September 15, 2017) http://www.washingtonblade.com/2017/09/15/bipartisan-bill-introduced-senate-trumps-trans-military-ban/

[8] Gayle Tzemach Lemmon, On Transgender Ban, Trump, Listen to Your Generals, CNN (September 18, 2017) http://www.cnn.com/2017/09/18/opinions/on-transgender-ban-trump-should-listen-to-his-generals-lemmon/index.html

[9] Zack Ford, McCain Joins New Legislative Effort to Overturn Trump’s Trans Military Ban, Think Progress (September 18, 2017) https://thinkprogress.org/mccain-transgender-military-ban-b15affc6d31d/

[10] Chris Johnson, Senate Blocks Vote on Gillibrand Amendment to Protect Trans Troops, Washington Blade (September 14, 2017) http://www.washingtonblade.com/2017/09/14/gillibrand-amendment-protect-transgender-troops-wont-get-vote/

[11] Jennifer Bendery, John McCain Cosponsors Bill to Block Trump’s Ban on Transgender Troops, The Huffington Post (September 15, 2017) http://www.huffingtonpost.com/entry/john-mccain-transgender-troops-trump_us_59bc31bbe4b086432b072478

[12] W.J. Hennigan, Pentagon to Convene Panel on Implementing Trump’s Ban on Transgender Personnel in the U.S. Military, Los Angeles Times (August 30, 2017) http://www.latimes.com/politics/washington/la-na-essential-washington-updates-pentagon-to-convene-panel-on-1504105334-htmlstory.html

[13] Jeremy B. White, Trump’s Transgender Ban Halted by Defense Secretary General Mattis, Independent (August 30, 2017)  http://www.independent.co.uk/news/world/americas/us-politics/trump-transgender-ban-general-mattis-frozen-defence-secretary-a7919331.html

[14] Richard Lardner & Lolita C. Baldor, Mattis: Transgender Troops Can Continue to Serve, Associated Press (September 16, 2017) http://www.military.com/daily-news/2017/09/16/mattis-transgender-troops-can-continue-to-serve.html

[15] Mark Joseph Stern, Why the First Lawsuit Against Trump’s Trans Ban is so Ingenious, Slate (August 9, 2017) http://www.slate.com/blogs/outward/2017/08/09/nclr_and_glad_file_lawsuit_against_trump_s_transgender_troops_ban.html

[16] Lambda Legal and Outserve-SLDN Sue President Trump to Reverse Transgender Military Service Ban, Lambda Legal (August 28, 2017) https://www.lambdalegal.org/blog/20170828_lambda-legal-outserve-sldn-sue-trump-over-trans-military-ban

[17] ACLU Files Lawsuit Challenging Trump’s Transgender Service Member Ban, American Civil Liberties Union (August 28, 2017) https://www.aclu.org/news/aclu-files-lawsuit-challenging-trumps-transgender-service-member-ban

[18] Karnoski et al. v. Trump, Lambda Legal, Complaint at 23 https://www.lambdalegal.org/sites/default/files/legal-docs/downloads/karnoski_us_20170828_complaint.pdf

[19] The costs of providing healthcare to transgender troops would cost $5.6 million annually, only 22 cents per member per month

[20] Agnes Gereben et al., Accessing the Implications of Allowing Transgender Personnel to Serve Openly, RAND Corporation (June 2016) https://www.rand.org/pubs/research_reports/RR1530.html

[21] Australia, Austria, Belgium, Bolivia, Canada, Czech Republic, Denmark, Estonia, Finland, France, Germany, Israel, Netherlands, New Zealand, Norway, Spain, Sweden, United Kingdom

[22] Gereben at 60

[23] Id.

[24] Gereben at 61

[25] Supra at 6

[26] Aaron Belkin et al., Discharging Transgender Troops Would Cost $960 Million, Palm Center (August 2017) http://www.palmcenter.org/wp-content/uploads/2017/08/cost-of-firing-trans-troops.pdf

[27] Gereben at 12

[28] Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944)