By a vote of 5-4, the Supreme Court today allowed the Trump administration to enforce its ban on transgender people serving in the military, while lawsuits over the ban percolate through the court system.
The impact of the decision will be immediate: approximately 9,000 members of the military are eligible to be discharged, effective today, despite their records of service and the recommendations of their commanding officers.
To be clear, today’s decision is not a final one. The question before the Court was whether the ban can be enforced while the three lawsuits about it proceed. It’s still possible that the appellate courts hearing those cases will strike down the ban, or that the Supreme Court itself will do so later on. Moreover, the Court declined to leapfrog over the appellate courts and hear the case immediately, as the government had requested.
But there is reason to be pessimistic.
First, the Court has apparently (there is no written opinion; only its order) taken the government at its word that trans soldiers are a danger to the military and that keeping the injunction against the ban in place would cause [irreparable?] harm to national security. That certainly bodes ill for its final decision; if the threat is so great that the ban can’t even be postponed, then surely it can’t be struck down either.
Second, whatever those dangers are – more on that below – they outweigh the other irreparable harm at issue: nearly 9,000 trans soldiers, most serving with honor, being summarily fired. That, too, augurs poorly for the Court’s ultimate opinion on the matter.
Third, it’s worth remembering how this dispute came about: by presidential fiat.
Prior to 2016, the military had numerous trans soldiers in active service, serving in gender-appropriate units. They were subject to the same rules and regulations as other servicemembers, including all the rules regarding medical, safety, and morale concerns. While the military could refuse to accept people suffering from “transsexualism,” there was no requirement that they do so, and no requirement that trans people hide their gender identity or be dismissed from service.
As trans issues became a cultural flashpoint, Defense Secretary Ash Carter under Obama codified this policy, specifically allowing transgender people to serve in the military, and confirming that any gender-transition-related expenses would be paid for by the military, just like any other health care bills. That decision was the result of a yearlong study and a detailed analysis by the RAND Corporation of the effects that trans people would have on military effectiveness and budget. (Answer: next to none.)
That policy was subsequently overturned in a July 26, 2017 tweet from Donald Trump, which is apparently how national security decisions are made these days.
Trans soldiers and trans activists sued immediately, and in December 2017, the ban was enjoined (put on hold) by a district court.
Meanwhile, Defense Secretary James Mattis convened a “panel of experts” who, in February 2018, found what the president wanted them to find. Reversing the previous policy, the military now would only admit or retain transgender soldiers if they had not transitioned and served in units according to their biological sex. This new policy was formally put into place in March 2018, but remained on hold until today.
Why was the injunction removed? The Court’s order didn’t say, but the government’s brief in the case make clear why they wanted it gone.
“And so long as this or any other injunction remains in place,” the government said, “the military will be forced nationwide to maintain the [Ash] Carter policy—a policy that the military has concluded poses a threat to ‘readiness, good order and discipline, sound leadership, and unit cohesion,’ which ‘are essential to military effectiveness and lethality.’”
Of course, the activists’ brief totally demolishes that argument, with ample citations to military experts and convincing critiques of the February 2018 report, whose conclusion was preordained.
More importantly, though, Trump undermined the argument in his original tweets from July 2017. At that time, he said the trans ban would remain in place “until such time as the Secretary of Defense, after consulting with the Secretary of Homeland Security, provides a recommendation to the contrary that I find convincing.”
This a huge smoking gun. It is proof positive that it’s Trump’s opinion that determines this policy, and that what he personally finds convincing – not what experts say is actually the case – is its basis. The generalissimo has decreed it, and therefore it is so.
This should not pass constitutional muster when the Court does decide on the ban’s merits. Yes, the military and its commander in chief have wide discretion when it comes to questions of national security. But when Trump says that a policy is based on his own fiat rather than facts, that is no longer the rule of law – even at the injunction stage, rather than as a final decision.
Or so I thought, writing about the trans ban in 2017.
But then came Trump v. Hawaii, and the Court’s shocking deference to the government’s claims that the Muslim ban – which Trump had promised numerous times in the 2016 campaign – was not really a Muslim ban. (After all, North Korea’s in it!, the administration says.)
Obviously, the government’s various successive versions of the ban – “watered down,” in the president’s words – in order to paint lipstick on a pig and make it into something other than what it clearly was. In Trump v. Hawaii, the Court kissed the pig and called it a princess.
The trans ban is similar. Like the Muslim ban, Trump just decided to do this, and then his government came up with a study to justify it because of national security. In the case of the travel ban, the real reason was Islamophobic pandering to his nationalist base. In the case of the trans ban, the real reason is transphobic pandering to his Christian Right base.
But because a special commission was convened – did anyone doubt what the findings of that commission would be? – now the ban is necessary for military readiness.
Today’s Supreme Court decision is a victory for fake news and fake science (And, perhaps, for the anti-LGBT lobby; it’s a 5-4 decision, and one wonders how Justice Kennedy, rather than Justice Kavanaugh, would have ruled.) The trans ban isn’t grounded in facts; it’s grounded in a demagogue’s tweet. In addition to thousands of trans soldiers, the truth just got dishonorably discharged.