Seven weeks ago, President Trump tried to set military policy via Twitter. As if sending a memo, the president tweeted, “Please be advised that United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.” That statement did not by itself constitute government policy. Unfortunately, since then the president has initiated genuine government action that could lead to implementation of the hateful statement.
Right now we are facing official efforts that could lead to the removal of transgender service members from the armed forces.
We at OutServe-SLDN, with our partner Lambda Legal, are trying to stop it. We have filed a complaint in the U.S. District Court for the Western District of Washington seeking to permanently enjoin the White House directive that would ban transgender people from serving in the military. We contend that this directive violates the Fifth Amendment’s guarantees of equal protection and due process, as well as the First Amendment’s guarantee of free expression. Gender identity and expression are legally protected under our Constitution. Discrimination is not.
If the president were honest when he claimed to have consulted with “generals and military experts” on the issue of open transgender service, he would have known that the Pentagon concluded in early 2016 that allowing trans people to serve openly does not affect military readiness or unit cohesion. There is ample evidence backing up this conclusion. The Pentagon, consulting experts and military commanders, studied it for years before dismantling the ban against transgender service. And since October 2016, trans people have been serving openly, without incident. Even before that time, trans people served in the military as they went through varying stages of transition. There are several instances of service members transitioning during the course of their enlistment in a manner that is wholly consistent with the policy that the White House is reversing.
The president now wishes to discard a workable, nondiscriminatory policy in favor of a factually and legally indefensible one that violates basic civil rights.
The president’s justifications? Baseless. One of them, readiness and unit cohesion, is contradicted by the Pentagon’s own studies. In fact, Adm. Michael Mullen, the former chairman of the Joint Chiefs of Staff, has said that excluding trans people undermines readiness — the opposite of what the president claims.
Another justification was “tremendous medical costs,” but we know this too is untrue. The Pentagon considered the cost associated with providing medical care to trans service members. Including gender-affirming surgery (if desired), such costs ranged between $2.4 and $8.4 million per year. At the high end of these estimates, the cost is still less than one one-thousandth of one percent of the proposed defense budget for fiscal year 2018. By contrast, the military spends $84 million — or 10 times as much — on medication for erectile dysfunction, something hardly essential to the national defense.
Medical care offered to transgender service members is also qualitatively indistinguishable from the care provided to cisgender troops. The surgeon general of the Navy, C. Forrest Faison III, told the Navy Times in December that most of the medical care for trans service members is offered to cisgender men with low testosterone or cisgender women needing hormone replacement due to menopause.
As with many of President Trump’s positions, the stated basis for his ban on trans service members is contrary to fact. Here, it is also contrary to established military policy and to existing law. The only remaining rationale for the policy announcement is politically motivated animus towards trans people. Numerous federal courts have already ruled that governmental discrimination against transgender people violates the Constitution, including for the reason that such discrimination is a form of sex discrimination. Period.
OutServe-SLDN and Lambda Legal have long been on the front lines of the legal battles to support the LGBT community. We are committed to every single person who suffers the arbitrary actions of government officials who exercise their duties with unconstitutional bias. What the president has begun with a tweet we will end in court.
PETER PERKOWSKI is the legal director for OutServe-SLDN (@OutServeSLDN), the nation’s largest organization serving LGBT service members, veterans, their families, and civilian employees.