//  11/6/17  //  Commentary

By Scott Skinner-Thompson, Associate Professor of Law, Colorado Law

After careful review of the law and the evidence, a federal district court has concluded that President Trump’s ban on transgender people in the military was likely motivated by animus, not readiness, and therefore has enjoined the ban.  The ruling in Doe v. Trump has important short-term implications for transgender service members, potential enlistees, and their loved ones, but is also another important milestone for transgender rights writ large.  And, of course, the ruling represents another setback for the Trump Administration’s slapdash and callous mode of governance. 

Most significantly, Judge Colleen Kollar-Kotelley of the U.S. District Court for the District of Columbia concluded that laws which single out transgender people—as the military ban obviously does—are subject to heightened judicial scrutiny under the Equal Protection Clause.  According to the Court, there were two separate and reinforcing reasons for subjecting such laws to heightened scrutiny: transgender status is itself a protected, suspect classification and singling out transgender people is a form of sex or gender discrimination.  Accordingly, the ban can only survive constitutional examination if it serves an important government objective and if the discriminatory means are substantially related to achieving that objective. 

Applying this level of scrutiny, the Court concluded that transgender servicemembers and aspiring enlistees were likely to succeed in demonstrating that while military readiness is an uncontested important government objective, discrimination against transgender people is in no way substantially related to improving military readiness.  Instead, the ban denies all transgender people the ability to serve in spite of their fitness to serve.  As the Court emphasized, after careful study, the military previously concluded that transgender people’s inclusion in the military strengthened readiness by availing the military of all potential talent.  The Trump ban reversed course, without any such careful study and in a departure from typical procedure, further suggesting that the ban was motivated by improper discriminatory purposes rather than military readiness. 

The Court also noted that while deference is owed to the political branches when making decisions regarding the military, courts are still empowered—indeed, obligated—to ensure that military policy is consistent with constitutional rights.  Here, as discussed above, the trans military ban is likely not consistent with the Equal Protection Clause. 

In concluding that the plaintiffs were likely to succeed in their Equal Protection challenge, the Court also held that the plaintiffs had standing to challenge the ban now, both because they are suffering injuries today and would continue to suffer constitutional injury in the near future.  Trump’s August 2017 Presidential Memorandum detailing the ban provides that transgender service members must be removed from the military by March 2018 and that new enlistees are indefinitely prohibited now.  While Secretary of Defense Mattis is provided some discretion in how to implement the ban, he is not empowered to alter the fundamental directives: no new enlistees, and current servicemembers out by March 2018. 

As such, the Court readily concluded that the plaintiffs were suffering and would continue to suffer injuries sufficient not only to provide them standing, but also sufficient to justify an injunction.   First, the ban imposes an immediate competitive barrier to participating in the military, preventing transgender people from acceding now, and kicking any currently serving transgender people out in March 2018.  Second, the ban imposes a substantial risk the transgender plaintiffs will be denied accession or discharged from the military in the near future.  More broadly, the Court also observed that the ban stigmatizes transgender servicemembers, places a cloud over their service, reduces their stature among colleagues, and paralyzes their careers.  Therefore, according to the Court, the plaintiffs alleged injury sufficient to satisfy standing requirements and the requirements for receiving an injunction.  If left in place, the Court’s order means that transgender people will be able to begin enlisting on January 1, 2018, and currently serving members cannot be discharged because they are transgender. 

All told, while the Court determined that these particular plaintiffs lacked standing to challenge the portion of Trump’s Memorandum forbidding the use of military funds for gender confirmation surgery, the Court’s decision to enjoin the ban on both retention and accession of transgender people represents a careful unmasking of what President Trump’s initial, impulsive tweets introducing the transgender military ban made plain—the ban is about hate and fearmongering, not the best interests of our country. 



Pinkwashing the Supreme Court

7/2/20  //  Commentary

The Court’s LGBTQ rulings should not distract from the broader trajectory of its jurisprudence in favor of the privileged.

Take Care

Espinoza v. Montana Department of Revenue – Requiem for the Establishment Clause?

7/1/20  //  In-Depth Analysis

Those who still believe that the Constitution precludes state involvement in promoting religious thought and experience now have some work cut out for them

Ira C. Lupu

George Washington University Law School

Robert W. Tuttle

George Washington University Law School

Religious Discrimination And Racial Discrimination

6/30/20  //  Quick Reactions

The Court’s decision in Espinoza is similar to the trajectory of the law of racial discrimination in some respects, it also offers a striking contrast in others

Leah Litman

Michigan Law School