//  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.

Repackaging Discrimination

4/1/19  //  In-Depth Analysis

The Trump administration (with some success) is making an argument to justify discrimination against transgender persons that would roll back some of the protections against other forms of discrimination as well.

Leah Litman

U.C. Irvine School of Law

Hetali Lodaya

Michigan Law School

Trump's Unyielding Religious Exemptions from the Contraceptive Coverage Requirement Are Unconstitutional

3/26/19  //  In-Depth Analysis

The administration has issued a religious exemption rule that collides with the Establishment Clause

Joshua Matz


The Two Sides of Donald Trump in The @RealDonaldTrump Litigation

3/25/19  //  Commentary

The government’s brief is at war with itself with respect to the state action and government speech doctrines in the @realdonaldtrump litigation.

Kyle Skinner

Harvard Law School

Leah Litman

U.C. Irvine School of Law