On Tuesday, Jan. 22, the Supreme Court delivered a major blow to the transgender community when it voted 5-4 to allow President Donald Trump's transgender military ban to stay in place while it's challenged in the lower courts. The policy was first announced by Trump in July 2017 on Twitter and then formally announced by then Secretary of Defense James Mattis in March 2018. It banned any “transgender persons with a history or diagnosis of gender dysphoria. Individuals who the policies state may require substantial medical treatment, including medications and surgery are disqualified from military service except under certain limited circumstances.” Basically, that means a ban from military service for anyone who has or wishes to transition from the gender they were assigned at birth to the gender they identify as.
It includes several exemptions: service members who have completed their hormone treatments or surgeries at least 36 months prior to service; hundreds of transgender people already serving before the policy went into effect; and those willing to serve “in their biological sex.” Waivers also can be issued on a case-by-case basis. The ban was challenged and many lower court judges had issued temporary injunctions, blocking the policy from going into effect.
It is extremely important to note that the Supreme Court today made no decision on the legality of the ban. Instead, the decision temporarily allowed the ban to go into effect while cases challenging it move through the lower courts. The Trump administration had actually asked the justices to immediately hear the appeals from the lower court rulings, but the Supreme Court turned down that request without comment. Allowing a law or policy to stay in effect while the appeals go through the lower courts is a common Supreme Court move.
Nevertheless, it's troubling that this injunction against this specific policy — which affects approximately 8,900 trans service members (the government's own numbers in 2016), about 900-plus of whom were diagnosed with “gender dysphoria” — was overturned by such a narrow vote. All four liberal justices voted to uphold the injunctions, meaning Trump's two appointees, Justice Neil Gorsuch and Justice Brett Kavanaugh, were part of the bloc of votes that allowed the ban to stay in place. This is particularly frustrating considering Gorsuch's seat should have been rightfully filled by President Barack Obama when Justice Antonin Scalia died in February 2016 but the Republican-controlled Congress refused to even consider any Obama nomination before the 2016 presidential election.
And when Democrats argued in 2018 that retiring Justice Anthony Kennedy's seat should wait to be filled until after the midterm elections, the Republican-controlled Congress took the opposite stance from two years earlier and voted to approve Trump's nominee, rather than waiting until after the election. Had Obama been able to appoint Scalia's replacement, or had the now Democrat-controlled House been able to push a more moderate choice than Kavanaugh, the 5-4 vote might have gone the other way. It's important to note that all five votes came from cisgender, heterosexual men. This close Supreme Court decision just demonstrates the long-lasting devastation that Trump and his administration can cause to the LGBTQ community, even beyond his (God willing single) term in office.
But regardless of the politics involved with the current Supreme Court makeup, the bottom line is that discrimination is wrong and anyone who is willing to put their lives on the line to fight for their country should be allowed to do so. Just as homosexuals were not allowed to serve at one point, and then were allowed to serve but not openly with “Don't Ask, Don't Tell,” these policies punish trans service members for living openly and honestly in one of the most selfless and high-risk jobs ever. If a transgender person decides to undergo surgery or hormone treatment, despite any “studies” done by the Trump administration, it should have no correlation with their ability to serve in the military.
In fact, the RAND Corporation, a nonprofit created in 1948 to offer research and analysis to the U.S. armed forces, did a study on openly transgender soldiers serving in the military in 2015-16, leading Obama's secretary of defense, Ash Carter, to end a previous ban on transgender soldiers. The study found “little or no impact on unit cohesion, operational effectiveness, or readiness. Commanders noted that the policies had benefits for all service members by creating a more inclusive and diverse force.” Moreover, “Policy changes to open more roles to women and to allow gay and lesbian personnel to serve openly in the U.S. military have similarly had no significant effect on unit cohesion, operational effectiveness, or readiness.” Why RAND's findings differ so drastically from Trump's studies just two years later is questionable. If anything, hiding one's true identity has bigger psychological consequences.
The Justice Department issued a statement saying it was “pleased” the Supreme Court granted stays, and the Pentagon issued a statement saying, “As always, we treat all transgender persons with respect and dignity. DoD's proposed policy is NOT a ban on service by transgender persons. It is critical that DoD be permitted to implement personnel policies that it determines are necessary to ensure the most lethal and combat-effective fighting force in the world. DoD's proposed policy is based on professional military judgment and will ensure that the U.S. Armed Forces remain the most lethal and combat-effective fighting force in the world.” That's awfully ambiguous and, again, it's unclear just how this policy translates to a more effective fighting force, unless the implication is that the DoD won't really be enforcing the ban.
Others have also spoken out against the Supreme Court's decision. OutServe-SLDN executive director Andy Blevins issued a statement saying, “For the past two and a half years, thousands of qualified, transgender individuals have made our nation's armed forces better, in every measurable quality, with their authentic service. The court's decision to allow the Trump-Pence administration to institute their wanting and discriminatory practices while the litigation proceeds is disappointing — our siblings-in-arms deserve better. We look forward to continuing our representation of these proud and selfless patriots, and reminding this Administration that military policy cannot be defined by baseless and discriminatory rationalizations.”
Jennifer Levi, director of the Transgender Rights Project of GLBTQ Legal Advocates & Defenders, echoed Blevins' statement: “The Trump administration’s cruel obsession with ridding our military of dedicated and capable service members because they happen to be transgender defies reason and cannot survive legal review.”
Time will tell if the Supreme Court will rule on the legality of the actual ban. Either way, once again President Trump fails to uphold his promise after the Pulse nightclub shooting to “fight for” the LGBT community.