//  7/26/17  //  Quick Reactions

This morning, President Trump tweeted that the U.S. government would not “accept or allow transgender individuals to serve in any capacity in the U.S. military.” Should the U.S. military in fact implement a policy consistent with the President’s tweet, it will violate the Constitution as understood by longstanding Supreme Court precedent.

Put to one side—for now—whether there is any military role to which the government could constitutionally tailor such a policy, of which I am skeptical. President Trump’s tweet refers to unspecified “tremendous medical costs and disruption” that would result from a different policy. He may be thinking of the Obama administration’s policy of paying medical costs associated with gender transition for active duty service members. But this policy decision has no obvious bearing on any individual’s fitness to serve. Transgender status seems not substantially related to any important objective—the constitutional standard for imposing gender classifications—and may not even be rationally related to any legitimate objective—the standard for all other classifications.

But even assuming for the sake of argument that there might be some constitutionally acceptable application of a policy of this sort, there is no rational reason to apply it to service “in any capacity.” The military employs cooks, medics, attorneys, engineers, postal workers, journalists, photographers, chaplains, chemists, and workers in countless other fields. It employs approximately 1.3 million active duty personnel. The idea that a transgender person serving “in any capacity” endangers the readiness or effectiveness of the armed forces is not credible.

Indeed, such a blanket prohibition, tweeted out in advance of the Pentagon completing a policy review, is so lacking in credibility that its only motivation seems to be animus towards transgender people. As the Supreme Court held more than two decades ago in Romer v. Evans, enacting government policy motivated by bare disgust towards a population of Americans is unconstitutional as a matter of first principles.

“Animus” is not always a clear guidepost to determining unconstitutionality, but it is here. We know it because we are seeing it.

If animus is the motivation behind the policy, it should be struck down on its face even if it a differently motivated law might have some constitutionally valid applications. Just as the President cannot institute a travel ban motivated by religious animus even if he could have reached a similar conclusion upon careful review, so too he cannot institute a transgender ban motivated by transgender animus even if he could have done so for legitimate reasons.

I doubt he could find such reasons, but his tweet shows that he didn’t even try.


Trump Isn't The Only Government Official Not Doing Enough To Protect Public Health

3/12/20  //  Quick Reactions

The President has been harshly criticized for his inadequate response to coronavirus. But state and local officials have the legal authority to do much more than they are doing to protect health and safety. They need to act now, with or without the President's support.

June Medical Symposium: The History Behind Third Party Standing Arguments

2/26/20  //  Commentary

In the third post in our Symposium on June Medical, Professor Mary Ziegler links Louisiana's argument that doctors lack standing to litigate cases related to abortion with a broader shift in litigation tactics by those opposed to abortion. And she wonders whether a reversal of precedent on standing doctrine could lead inevitably to the end of Casey and Roe.

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June Medical Symposium: The Quiet Erasure Of The Right To Abortion

2/25/20  //  Commentary

In our Symposium on June Medical, Andrew Beck of the ACLU's Reproductive Freedom Project wonders if a decision in this case will leave many Americans with a right to abortion on paper—but not in practice.

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