As of late January 2019, the U.S. Supreme Court has allowed a controversial ban on transgender people serving in the military to go into effect. This decision furthers the extreme policies that former President Donald Trump started. This decision comes after Trump signed an executive order on his first day in office, declaring that his administration would only recognize two sexes: male and female. Still, the ban has been met with 19 lawsuits. It exemplifies the contention surrounding transgender rights in the military and in U.S. society as a whole.
In July 2017, just a few months after he was inaugurated, President Donald Trump took to Twitter to announce a new policy. He announced at the time that transgender troops would be banned from serving in the armed forces. This announcement elicited a historic level of backlash, including perhaps the most fierce legal battles. Advocates for transgender rights cite constitutional protections that guarantee equal treatment under the law as a core argument against the ban. That was a major challenge when the Trump administration was sued by 14 transgender service members. Their claim rested on their right to equal protection – the very heart of the Fifth Amendment’s due process clause.
The legal landscape shifted when the Supreme Court’s conservative majority issued an unsigned order lifting a lower court’s injunction that had previously blocked Trump’s ban from taking effect. This ruling allows the discriminatory ban to remain in place. In practice, it is likely to impact fewer than 1 percent of the more than 2.1 million active-duty military personnel—that’s approximately 4,200 transgender service members—as the litigation continues to unfold.
In March, Benjamin Settle, a U.S. district court judge seated in Tacoma, Washington, ruled the ban unconstitutional and instituted a temporary nationwide injunction against the ban. He blasted it as unconstitutional. The Trump administration of course appealed the decision. To bolster their emergency request to the Supreme Court to reinstate their ban, they pointed to their successful litigation in the Supreme Court over the years. The Trump administration argued in favor of banning transgender service that the inclusion of transgender people creates a liability to military readiness.
On January 27, during his second term, Trump unveiled a new directive titled “Prioritizing Military Excellence and Readiness,” which effectively rescinded an order from his predecessor, Democrat Joe Biden, that permitted transgender individuals to serve openly in the military. Trump’s administration emphasized that this new policy aimed to enhance military effectiveness and discipline.
In response to this ruling, several civil rights advocates have articulated their displeasure with the Supreme Court ruling. Ana Reyes, representing one of the legal challengers, stated, “The cruel irony is that thousands of transgender servicemembers have sacrificed – some risking their lives – to ensure for others the very equal protection rights the military ban seeks to deny them.”
The ban was immediately condemned by national security leaders across the ideological spectrum as a discriminatory act, lacking any connection to military readiness or effectiveness. Lambda Legal and the Human Rights Campaign Foundation issued a statement condemning the ruling: “By allowing this discriminatory ban to take effect while our challenge continues, the court has temporarily sanctioned a policy that has nothing to do with military readiness and everything to do with prejudice.”
Advocates of transgender rights in the military are dealt a painful blow but aren’t going without a fight. Their conviction that the ban violates these constitutional guarantees of equal protection propels their advocacy. “We remain steadfast in our belief that this ban violates constitutional guarantees of equal protection and will ultimately be struck down,” Lambda Legal and the Human Rights Campaign Foundation emphasized.
Transgender people have been at the center of Trump’s anti-LGBTQ rhetoric. He has previously stated, “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.” Additionally, he has voiced opinions suggesting that a person’s gender identity inconsistent with their sex undermines military values, stating, “Adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle.”
Supporters of Trump’s policies have painted these decisions as wins for military performance standards. Karoline Leavitt celebrated the Supreme Court’s ruling, proclaiming it as “Another MASSIVE victory in the Supreme Court!”
