By Noah Feldman
A ban on transgender people serving in the U.S. military would probably be unconstitutional under any circumstances. But President Donald Trump has pretty much guaranteed that courts would strike down such a ban by announcing it Wednesday on Twitter, without any real justification.
Who knows whether Trump will follow up his tweets with an actual order. That would normally come from the Pentagon, which was reportedly surprised by the announcement. If he does, courts may use the initial tweet as an indicator that the decision was motivated by anti-transgender sentiment, not reason. That alone would be enough to sink the order, despite the high degree of deference that is usually accorded to the military for national security decisions.
To consider such a ban, start with the basic legal structure. It’s uncertain whether federal sex-discrimination law covers transgender people. The U.S. Supreme Court didn’t get to rule on the question in the case of Gavin Grimm, the transgender student who wanted to use the school bathroom of his choice, after the Trump administration changed the federal policy in question.
Even if discrimination against transgender people is a form of sex discrimination, the military wouldn’t be treated exactly the same way as civilian organizations would. After all, bans on women serving in combat were maintained until recently, long after sex-discrimination laws went into place.
What’s certain is that the Constitution protects the equal rights of transgender people — because the Constitution guarantees everybody equal protection of the laws. In the landmark 1996 case, Romer v. Evans, the Supreme Court in an opinion by Justice Anthony Kennedy held that a Colorado state constitutional amendment couldn’t treat gay people worse than everybody else.
The court didn’t afford any special protection to gay people. Its reasoning was that a law that was based solely on discriminatory animus violated the equal protection of anyone whom it disadvantaged.
Because the Romer case didn’t give special protection to gay people, no special constitutional protection for transgender people is required to conclude that a law targeting them for discrimination would be unconstitutional.
A ban on service in the military is obviously a form of discrimination. The only conceivable way it could be constitutional to ban transgender people would be if the government had a strong reason to do so — a real reason, not a pretext made up to cover irrational bias.
Trump’s tweets mentioned two reasons. “Our military must be focused on decisive and overwhelming victory,” he wrote, “and cannot be burdened with tremendous medical costs and disruption that transgender in the military would entail.”
Medical costs and disruption are thus the president’s chosen rationales. But he did not offer any evidence in support of either proposition. That makes both look highly suspicious. To put it bluntly, both sound made-up.
An actual order, subsequently challenged in court, would have to offer some basis for these tweeted suggestions.
The medical cost rationale sounds highly doubtful. Even if the cost of some gender transitioning were high, the military could simply decline to cover that transitioning. Beyond that, there’s no particular reason to think that transgender people will cost the military any more in medical expenses than anybody else.
Associated medical risks are not a permissible basis for discrimination. The military could not arbitrarily exclude Ashkenazi Jews because they have higher incidence of certain genetic birth defects, or African-Americans because of an elevated risk of sickle-cell disease.
As for “disruption,” the term is so vague that it would be difficult to substantiate. Among other things, the military would have to show that the presence of transgender people created greater disruption than the presence of gay people or women or people of different races, to give just a few examples of groups formerly excluded from the military or treated differently for discriminatory reasons.
This is pretty clearly not the case. The disruption or distraction rationale used to keep out women and gay people (and at one time to justify racial segregation) all turned out to be incorrect. What would cause disruption would be the policing of gender in the military to make sure no one was running afoul of the transgender ban.
To be sure, in court the military could try to come up with other explanations or substantiate Trump’s assertions. But it’s entirely likely that a court would look beyond any such justification and directly to the president’s tweets.
That’s precisely what’s happened in various courts in relation to Trump’s immigration ban. Courts have rejected the government’s stated rationales, focusing instead on Trump’s Twitter statements and using them to show bias.
In theory, Trump must know this — or at least his lawyers do. The language of Wednesday’s tweets was at least a little bit less vernacular than many Trump composes, and suggests perhaps a modicum of vetting.
The only conclusion that can be reached is that Trump doesn’t care. He’s essentially daring the courts to reject this ban, assuming it ever takes legal form.
That looks like governance by distraction — specifically the distraction of bias. It would be nice to think that the president wants to avoid headlines in which courts denounce him for discrimination. But it would appear that he actually wants to make more of them — this time at the expense of transgender people.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg View editorial board or Bloomberg LP and its owners.