Any attempt to enforce a reinstated ban against transgender persons currently serving in the military would face steep legal challenges. Under well-settled law, the courts would almost certainly hold that soldiers who came out as openly transgender in reliance on the military’s own policy could not be subsequently penalized for doing so. For example, in 1986, the Ninth Circuit held that despite the military’s then-official policy of banning service by gay persons, the Army could not enforce that policy against Perry Watkins, a serviceman whose openly gay identity had been known to his superiors for years.
The court held that because the Army had encouraged Watkins to stay in the service, despite knowing that he was gay, it would be unjust to permit the Army to discharge him for being gay just a few years before his retirement. That principle would apply even more strongly to current transgender soldiers, who are relying not just on a policy of de facto tolerance like Perry Watkins, but on an official policy expressly permitting open service.
After President Donald Trump announced his intention on Wednesday to reverse the Pentagon’s historic 2016 decision to lift the ban on military service by transgender people, strong criticism was immediate from Republican Senators Orrin Hatch and John McCain, among many others. On Thursday, US defense officials told CNN that the Joint Chiefs of Staff, including the chairman, were not aware that Trump planned to tweet a ban on transgender service members.
Amidst widespread speculation about the President’s motivations for such an abrupt shift, those most shaken by the announcement were transgender service members themselves, whose futures are now at risk.
Since 2016, according to the National Center on Transgender Equality, an estimated 15,000 transgender soldiers have been serving openly. Many have been deployed overseas in Afghanistan and other countries. With a tweet, the President has cast their status into doubt.
For now, the policy permitting open service by transgender soldiers remains in effect, but many future legal questions loom.
The President’s tweets have no immediate legal impact. The Department of Defense website still has a page showing its “Transgender Policy” which has been in place since June 30 of last year. It states: “Effective immediately, transgender Service members may serve openly, and they can no longer be discharged or otherwise separated from the military solely for being transgender individuals.”
But if the Department of Defense were to reinstate the ban, would transgender service members who are already serving be dismissed? Would the discharges be honorable or dishonorable? Would retirement pension benefits be taken away? Would access to other veteran’s benefits be denied?
Any attempt to discharge transgender soldiers would also raise serious equal protection concerns.
On its face, such a policy would target a class of persons — transgender people — based on a characteristic that, by the military’s own admission in its recent careful study of the issue, has no bearing on their fitness to serve.
Even under the lowest level of equal protection review, which requires that any classification must have at least a rational basis, such a policy would likely fail.
To be sure, courts generally give considerable deference to the judgment of military officials. But the rationale for that deference would be sharply undercut in this case.
Before adopting its new policy in 2016, the military subjected the issue to exhaustive review, conferring with medical experts, examining all available data, and studying the experiences of other countries. Based on that extensive investigation, the Department of Defense concluded that permitting transgender soldiers to serve would not be disruptive or costly and would enhance military readiness.
In light of those conclusions, a sudden reversal of policy based on the President’s tweets would likely elicit careful judicial review. Unlike a policy based on the considered judgment of military officials, such a policy would likely be viewed as reflecting an improper political purpose or animosity toward a disfavored group.
In sum, despite the President’s ominous tweets, transgender soldiers continue to serve openly and proudly in every branch of our nation’s military. And with the help of the courts, that is unlikely to change, even if the President strong-arms the Department of Defense into turning back the clock to reinstate its prior ban.
