Breaking Down Trump's Trans Military Ban

After four separate courts blocked the Trump administration’s ban on transgender people serving in the military, the White House announced a new plan to carry out the ban on March 23. How is this possible? And what does this mean?

We sat down with three lawyers from our LGBT & HIV Project — Josh Block, Chase Strangio, and James Esseks — to break it down.

Last week, the Trump administration announced a new plan to implement the ban on trans people serving in the military. What does that policy actually do?

Josh: They are calling it a new policy, but it’s really just following through on what Trump ordered last year. He told the military last year to ban transgender people from serving. Last week the military did it.

Chase: Yes, it is just the military's implementation of his order to ban trans people from serving. There is nothing new. The implementation of Trump's plan, which was released last Friday, is a wholesale ban on trans people serving, just like Trump asked for when he first tweeted.

Can some trans people stay in the military?

Josh: Yes, they made an exception to the policy for people who are already in the military and diagnosed with gender dysphoria to get around the court orders in place. But that is a small exception. The actual policy is that if you are transgender, you can't serve.

So trans people can't enlist unless they serve as the gender they were assigned at birth?

Chase: Correct, and only if they have taken no steps to transition of any kind. So really: Trans people can't enlist. Also, many trans people do have gender dysphoria and if they have access to a doctor, a diagnosis. But, for people currently serving, many were serving in the shadows before the previous ban was lifted in 2016 so do not have that documentation.

James: The implementation policy says that trans folks who don't want to transition, who don't suffer any dysphoria because of being trans, and who can serve in their assigned sex at birth can enlist or serve. But do those people even exist?

Chase: I don't think those people exist. Or if they do, they aren't trans.

What about trans people who are already enlisted/currently serving?

Chase: In theory, they can stay in the military if they are out now and have a diagnosis. But what we don't know is what kind of punishment they will face for being trans: lack of promotions, denial of deployment, forced discharge for pretextual reasons.

So there's a chance that if you're currently in the military and you come out as trans, you could be discharged?

Josh: If this new policy goes into effect, anyone who comes out as trans for the first time will be affected.

Didn't the court already strike this ban down multiple times? How can they do this?

Josh: They can't. That's why the government is asking the courts to dissolve their injunctions. The government is pretending that they have now gone through an independent analysis that is not infected by Trump's transparent discriminatory intent. It's very similar to the games the government has played with the Muslim ban. Pretending to pass a new policy and then claiming it isn't tainted by Trump's unconstitutional orders.

So the government is claiming it has new evidence that should be sufficient justification for the ban moving forward?

Josh: They were supposed to study the issue and claim to have found “new evidence” to support the ban. But that "new evidence" is mostly data from before transgender people were allowed to serve openly.

Chase: And it isn't even really much evidence at that. It is a lot of uncited ideological polemics about how trans people are just inherently devious and threaten the privacy of others with no support for any of it, which is why they have been condemned, for example, by the APA:

“The American Psychological Association is alarmed by the administration’s misuse of psychological science to stigmatize transgender Americans and justify limiting their ability to serve in uniform and access medically necessary health care."

Why do you all think the Trump administration is choosing the military as the vehicle for its anti-trans agenda?

Chase: Well they certainly aren't limiting their attacks to the military. They have attacked us in the context of education, employment, health care and housing. It is an all-out assault.

Josh: Right. The simple answer is that the administration wants to encourage discrimination against trans people any time it has power to do so. But the military does have a special salience on our society. Excluding trans people from the military sends a powerful message that trans people are not part of the fabric of American civic life.

What can people do?

Chase: People can support trans people in their lives, and make clear publicly that they oppose this administration's efforts to erase and target us. They can fight discrimination at the federal, state and local levels.

Add your name to stop Trump's ban on transgender military service

Anything else you think people should know?

Chase: It is important that we keep in mind this is part of an effort to confuse and exhaust us and it is part of the same strategy of this administration to roll back civil rights protections and target particular groups of people and communities. The injunctions are still in place so for now they are blocked from implementing any of this. We are fighting to keep it that way and will keep fighting.

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Anonymous

If you really want to answer the question of "how is the possible?" you should ask lawyers from different perspectives - not just the ones saying what you want to hear. The truth is actually very interesting and I'd actually love for someone to compile all the aspecd of it into an article or blog. The Founding Father's PURPOSELY did not put the Judicial Branch in the military chain-of-command and gave the Judicial Branch extremely limited powers over the military.

The President is the top of the chain-of-command and every individual in the military has to obey any lawful order issued by him. It's a personal responsibility, too. You can't just say "well such-and-such told me too" unless such-and-such outranks the person that issued the order. The Judicial Branch is not part of the chain-of-command so they don't outrank the Commander-in-Chief.

As for who would make the call over whether an order is lawful that should fall under UCMJ, I believe. After all, if you disobey a lawful order you would be prosecuted under UCMJ. The regular Federal Courts can't try some for disobeying a direct order because it's not their jurisdiction. What does JAG say about all this? That's a rather important perspective to have if you want to understand the legal aspects of this situation. Personally, I think a lot of JAG Generals are personally glad the media has declined to the point that they aren't even thinking about pestering JAG for their legal opinion.

Also, the Constitution actually gives CONGRESS most of the power over the military. YES, CONGRESS! They pass the laws that make things "lawful" or "unlawful" , after all. Most of the trans related things you blame Trump for actually happen because CONGRESS has not addedtransgenders to Civil Rights Laws or otherwise officially recognzed them as a special interest group.

Anonymous

Good points but that's not exactly correct. Using a Sports Metaphor this is how the Founding Fathers actually designed it:

On constitutional rights, under Article III and Article VI of the U.S. Constitition, the Judicial Branch [courts] is essentially the "Referee" that determine where the "out-of-bounds" lines are for BOTH the Legislative Branch [Congress, state legislatures, town councils] and the Executive Branch [president, governor, mayor]. The Judicial Branch is CO-EQUAL to the other two branches, not subordinate.

The two players - Legislative Branch & Executive Branch - have lots of power and flexibility, as long as they stay within the Judicial Branch's constitutional "out-of-bounds" . They are free to create laws and executive orders within those boundaries. The U.S. Constitution is also a "wartime" charter with emergency wartime clauses already built in, so the Judicial Branch draws those boundaries also.

Under Article VI of the U.S. Constitution: on constitutional rights, a federal district court's ruling is the "supreme law of the land" for that locality (which can appealed higher). A federal Appeals Court is the "supreme law of the land" for several states (which can rarely be appealed higher). A U.S. Supreme Court ruling is the "supreme law of the land" for the entire United States - including Congress, the President, governors, mayors, police officers, state legislatres and town councils.

The biggest weakness, in my opinion, is there is no strong enforcement mechanism when the "two players" violate the "supreme law of the land".

Anonymous

The 3 branches of our government are equal but they don't all have the same powers. The Constitution gave all the power over the military to the Executive and Legislative Branches and the Supreme Court has consistently upheld that those Branches are the ones with the power to make decisions for the military to include decisions that would be considered discriminatory in the civilian world. The Supreme Court has also allowed (as in, did not declare Unconstitutional) the UCMJ which has laws and procedures that would not be allowed for our Federal Court system. Both the Constitution and precedence give Congress and the Executive Branch all the power over military operations.

Anonymous

Unless we amend the U.S. Constitution, all three branches are supposed to follow the "Letter & Spirit" of each amendment, article and clause. The Judicial Branch has the duty to "interpret" what the Letter & Spirit means in the 21st Century. The Judicial Branch - nor any other branch - has the authority to change it's meaning (without a constitutional amendment).

When leaders operate outside their constitutional authority, it's called "authoritarianism" which is the opposite of the Founding Father's "constitutional rule of law" model of government. For example: officials that torture or wiretapped without warrants are "authoritarian" officials, not "rule of law" officials.

Anonymous

So, when Obama who was not part of the Judicial or Legislative Branches, took it upon himself to "re-interpret" Title IV he was being authoritarian? You are admitting that? You liberals are talking in circles and its about to catch up with you when a transgender-related case finally hits the Supreme Court.

Anonymous

BTW, as a witch who has served in the military who was a confidant of many lesbians serving before DADT was repealled I can tell you what happens with transgenders serving n the military -- it depends. It depends on the opinion of your chain-of-command, specifically the company commander, who gets to decide whether to nitiate actions under UCMJ. It depends on how well liked you are. It depends on how much trouble it's causing. It's really better to just keep your personal business to yourself. That's actually a good suggestion about all types of personal business and the military -- keep it to yourself.

Anonymous

If you suggest keeping your gender to yourself, I can tell you as a trans person that to be referred to by anything other than your chosen name and correct pronouns is incredibly harmful to someone’s sense of self and mental health. If you suffer from dysphoria, you would choose to be true to yourself 9.5 out of 10 times because it sucks to be called something you are not. Gender is a public thing, unfortunately, and I don’t have the choice to “keep it to myself”.

Anonymous

there isn't much opportunity to flaunt your gender in the military. I can't say that I ever felt particularly feminine in BDUs. Female BDUs are basically the same as the male ones but cut slightly different to account for the curves most female bodies have. If you don't have those curves the uniform will fit a bit funny. If you have those curves the male version might be tight in places. Those uniforms are actually designed so that male and female soldiers look as similar as possible cuz everyone looking the same is a military thing. If it's important to you that everyone know that you are "male" or "female" every second of the day then the military is probably not the job for you.

Dr. Timothy Leary

I am in support of transgender people. Recently, I have signed an agreement whereby in the event of my accidental death a portion of my body will be donated for the usage of a transgender female. If you know what I mean.

Hahaha

Tim Leary for the win!!

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