Where’s the New Transgender Troops Ban Headed? Look at the Travel Ban Fight

Defense Department file photo

First came the bombshell tweets that surprised even Trump’s own Pentagon last July. Then, nearly a month later, the actual policy directive: a memorandum telling the military to reverse its planned acceptance of transgender recruits and to reconsider whether transgender people already in uniform should continue to serve. Lawsuits from human rights groups quickly followed, as did temporary injunctions prohibiting the administration from implementing the ban while the courts sorted it out.

Then on Friday, President Donald Trump’s administration unveiled a new version of the policy, one that would bar most transgender individuals from serving in the military and may require kicking out some active-duty members. It disqualifies anyone with “a history or diagnosis of gender dysphoria — including individuals who the policies state may require substantial medical treatment, including medications and surgery,” except under limited circumstances. The new policy is slightly more nuanced than the original tweets’ wholesale ban and is backed up by a 44-page report signed by Defense Secretary Jim Mattis.

But experts in military and discrimination law say it’s unlikely to make it significantly easier for the policy to go into effect. Because just like the “travel ban” before it, they say, the way this policy was rolled out undermined it from the start.

At first glance, Trump’s decisions to regulate borders and reshape the armed forces could seem safe from reversal by the judicial branch. Courts are generally more reluctant to intervene in the president’s decision-making on matters of national security. But that deference is not absolute, they reminded the Trump administration while adjudicating the ban on travelers from seven majority-Muslim countries last year.

And when it comes to accepting things in the military they wouldn’t accept in broader society — a draft for men but not women, for example — the way those decisions were reached matters. It’s “absolutely essential,” said James Richardson, a lawyer who specializes in employment discrimination actions and whistleblower claims.

“With a decision like this, where the core issue really is a Fifth Amendment issue of whether you’re singling groups out arbitrarily for poor treatment, the history of the ‘deliberative process’ is everything,” Richardson said. “The president has a whole lot of discretion when it comes to the military, but he still can’t arbitrarily single out groups for persecution.”

And that’s where the ban on transgender troops runs into trouble, Richardson and several other lawyers said. By rolling it out in three tweets, without supporting analysis or new official studies, Trump provided the courts no evidence that the decision had a rational basis, not one rooted in sentiment.

And judges said as much while blocking the ban last fall. Judge Colleen Kollar-Kotelly of the Federal District Court of the District of Columbia wrote that it seemed to be based on a “disapproval of transgender people generally.”

The ban’s initial announcement was in particularly stark contrast to the way the military began allowing transgender troops to serve openly under President Barack Obama, said Michel Paradis, a military law professor at Columbia University. That decision came after then-Defense Secretary Ash Carter commissioned an independent study from the RAND Corporation which found that allowing transgender persons to serve openly would “have minimal impact on readiness and health care costs.”

“It was a class in good government,” Paradis said, “in terms of making policy decisions based upon reasoned analysis, the investment of all stakeholders, rolling out all changes slowly, anticipating as many problems as possible ahead of time, making sure exceptions can be made as they need to be made.”

Now Trump’s Pentagon has studied it

The newest version of the prohibition was “developed through extensive study by senior uniformed and civilian leaders, including combat veterans,” and “sets forth a policy to enhance our military’s readiness, lethality, and effectiveness,” White House Press Secretary Sarah Huckabee Sanders said in a press release Friday.

In his memo, Mattis wrote that he convened a panel of senior officers, civilians and enlisted leaders that met 13 times over a span of 90 days to review the department’s policies. It was necessary, not just because Trump’s August memorandum ordered it, but also because the RAND report contained “significant shortcomings” and the issue’s “proven more complex than the prior administration or RAND assumed,” the secretary wrote.

Now, for the first time, the Pentagon is able to say how many transgender persons currently serve: 8,980: 937 of whom have been diagnosed with gender dysphoria.

It examined rates of mental healthcare use, finding from a preliminary review of data from the Military Health System that “service members with gender dysphoria are eight times more likely to attempt suicide than service members as a whole.” The panel considered that kind of internal data, solicited input from commanders, and reviewed existing medical studies to conclude that individuals diagnosed with gender dysphoria who require medical transition or who have already transitioned pose a risk to readiness. As with other parts of the report, the panel acknowledges that at times evidence is conflicting, but ultimately errs on the side of preserving readiness and unit cohesion.

On how accepting transgender servicemembers changes the “clear sex-differentiated lines with respect to physical fitness; berthing, bathing and showering facilities; and uniform and grooming standards,” for example, the Pentagon acknowledges “there are serious differences of opinion on this subject, even among military professionals, including among some who provided input to the panel of experts, but given the vital interests at stake— the survivability of service members, including transgender persons, in combat and the military effectiveness and lethality of our forces—it is prudent to proceed with caution.”

Too little, too late?

But it still may not be enough to overcome the four existing legal challenges against the policy.

Firstly, it’s more difficult to strip people of rights they already have than it is to expand them, Paradis said. Transgender persons have been serving openly since the Carter policy went into effect in 2016, and the military began accepting transgender recruits on Jan. 1 by court order.

“It would be one thing if transgender servicemembers were litigating to be given the opportunity to serve against longstanding, consistent policy,” he said. “But just as a legal matter, it’s much harder to change the status quo than to preserve it. I don’t know that this report is strong enough to change the status quo created by Secretary Carter allowing transgender service.”

Second, the fact that Mattis’s study came after the president had apparently already reached a conclusion will cast doubt on its findings.

“In a parallel universe, a court might actually determine it’s within the president’s discretion to implement policy based on, let’s say, the Mattis study. But that still won’t be enough to carry the day in this case, because that history changes everything,” Richardson said. “Because even if it’s a policy that it may otherwise be within the president’s discretion, we have plain as day proof that this is something that was an arbitrary decision that was motivated by animus.”

We’ve seen this play out before: As the courts litigated challenges to the Trump administration’s initial ban on travelers from the Middle East and North Africa, judges routinely cited the president’s tweets as justification to block the ban. That legal battle is a good case study for how the lawsuits against the transgender ban might play out, Paradis said.

“I can very much see this playing out like the travel ban litigation, where the government keeps coming back, trying to do a little more homework each time to say, ‘Have we thought about it enough now?’” Paradis said. “And the courts of appeals saying ‘No, you’ve come to a conclusion for impermissible reasons.’”

Only with version 3.0 of the travel ban did the Supreme Court finally allow it to go into effect. (Though cases are still proceeding against it). Right now, the Pentagon says the new troop policy is on ice as the initial injunctions stand and the cases work their way through the courts.

Nor will they answer questions about it while those challenges are ongoing. On Monday, Mattis declined to talk about the report at an event welcoming foreign officials to the Pentagon.

“Right now, because these are matters under litigation, I'm not going to discuss them further,” he told reporters. “I think the statements stand on their own right now, and I don't need to waste our guests’ time reiterating what's already down."

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