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Is Banning Trans People from the Military Unconstitutional?

Following President Trump's statements on Twitter saying that trans people will be prevented from serving in the military, advocates, lawyers, and lawmakers are preparing for what happens next.
Photo by Chip Somodevilla via Getty Images

This morning, the president announced a major military policy decision on Twitter, stating that transgender individuals will be prevented from "serving in any capacity" in the US military—despite the fact that the Pentagon announced an end to that ban a little more than a year ago.

In the span of three tweets, punctuated with a "Thank you" at the end, Trump wrote: "After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical cost and disruption that transgender in the military would entail [sic]."


Read more: 'I Served. Trump Never Did': Trans Veterans Respond to The President's Ban

In the few hours since the announcement, several politicians, nonprofit organizations, and advocates have come out strongly against it. New York Sen. Kirsten Gillibrand, ranking member of the Personnel Subcommittee on the Senate Armed Services Committee, vowed to fight back, saying in a statement that she will "introduce legislation and will fight to overturn this discriminatory decision."

Wisconsin Rep. Marc Pocan, a member of the congressional LGBT caucus, suggested the president's measured tweetstorm was a means to distract Americans from current talks in the Senate on health care reform, and that "with more than 15,000 transgender Americans serving in the military today, President Trump should immediately reverse course on his decision."

Aaron Belkin, director of the Palm Center, which advocated for lifting the ban for several years, called the president's decision "a worse version of 'don't ask, don't tell.' … The Rand Corporation has estimated that the cost of medical care for transgender troops is approximately one one-hundredth of one percent of the military annual health care budget, or at most, $8.4 million per year. To claim otherwise is to lie about the data."

The question is: What happens now? A spokesperson for the Department of Defense told Broadly this morning via phone that all questions regarding the president's statements were being referred to the White House, and a request for comment to the White House had yet to be returned as of press time.


"We don't do lawmaking via Twitter in this country"

Emily Martin, General Counsel and VP for Workplace Justice at the National Women's Law Center, says the next steps are unclear. "It seems that the president chose to tweet without having a plan in place with the Pentagon as to what this means," she tells Broadly. "There are still regulations in place that say that transgender people can serve in the military. And the president doesn't have the power to sweep away those regulations by a tweet."

Martin says a very first step needs to be the creation of a formal process to reopen and reconsider the issue, which was decided last June after a formal announcement to allow transgender individuals to openly serve in the military—and that their medical coverage would include hormone therapy and gender reassignment surgery if deemed medically necessary—came down from the Department of Defense.

"We don't do lawmaking via Twitter in this country," she says. "If we get there, if the policy is formally changed, I think that there are real questions about what this means—whether the intent is to discharge transgender people who are currently serving, are they going to be discharged honorably or dishonorably, what does this mean for their lives and their livelihood? Frankly, I would be shocked if anyone in the White House has really wrestled with those questions."

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She adds: "This seems to be unconstitutional. The president is announcing a policy of discrimination, and while the Supreme Court hasn't weighed in yet, lower courts have said pretty consistently over the last several years that if you're discriminating against transgender people, that's a form of sex discrimination and the Constitution provides very robust protections against sex discrimination. There are a lot of legal questions that this announced decision raises."

Brittyn Calyx, a trans woman and former Private First Class in the Army National Guard who experienced discrimination first hand in the military and was discharged under "don't ask, don't tell," tells Broadly: "For now, it is a major setback and could lead to discharges, increase of mental health costs due to cultivating an atmosphere of bullying and hostility within the military in regards to how trans service members are treated. That is increased cost, not our hormones and/or surgeries."