Transgender Persons and Judicial Governance of the Military

Transgender Persons and Judicial Governance of the Military
AP Photo/Elaine Thompson
Transgender Persons and Judicial Governance of the Military
AP Photo/Elaine Thompson
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As part of the “executive Power,” the President is “Commander in Chief” of the United States military.  And the Congress has the power to “raise . . . maintain . . . and make rules” for the armed forces.  But can the federal judiciary do a better job?  And should military recruits be allowed to recruit themselves?

In its ruling last week on transgenders in the military, a Seattle federal district court seems to have answered both questions in the affirmative.  Under longstanding regulations of the Department of Defense potential recruits who have “psychosexual conditions” including, inter alia, “transsexualism” and “transvestism,” but not including homosexuality, cannot enlist in the military.  In February 2015, Ashton Carter, Secretary of Defense in the Obama administration, said that he was “open-minded” about allowing transgender persons to serve in the military, and four months later convened a Pentagon working group to study the matter.  The White House issued a statement that President Obama agreed, and Obama himself made a visible show of support of transgender troops by welcoming two active-duty transgender troops to the White House in June 2015.  With the study completed, on June 30, 2016, Carter announced that he was canceling the ban on transgender troops and that such troops would be granted enlistment on July 1, 2017.  

On July 26, 2017, President Trump said in a Twitter that the “United States government will not accept transgender individuals to serve” in the military.  He followed up that statement on August 25, 2017, by issuing a Presidential Memorandum that was different in important ways.   Saying that “further study” was needed, the Memorandum said that the Obama administration had “failed to identify a sufficient basis to conclude that terminating the Department’s longstanding policy and practice” regarding transgender persons “would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources.”  He countermanded the Obama administration’s new policy and extended the life of the predecessor policy beyond January 1, 2018, but left open the possibility of the military services offering a different policy that he would “find convincing.”  He said that the old policy would be reinstated permanently on March 23, 2018, and left open the possibility that the secretary of Defense and the head of Homeland Security, “at any time,” could make “a recommendation to the contrary” that “a change to this policy is warranted.”

Standing for all

In the Seattle case, the plaintiffs are transgender persons already in the military and interested in enlisting in the military.  The everyday jurisprudential principle of “standing” requires an imminent “injury in fact” and a causal connection between a plaintiff’s claim and the law or policy being challenged. The court found that the transgender plaintiffs had standing to challenge the Memorandum even though the Memorandum explicitly states that “further study” could alter it, and, thereby, meaning that the alleged injury to the plaintiffs was neither imminent nor in fact and thus not ripe for decisions.  The court found that the plaintiffs “dignity,” a constant theme of all homosexual-rights cases since the four Supreme Court cases on homosexual rights, would be affected.  The plaintiffs had standing, the court ruled, because they were at risk of suffering a “stigmatic injury.”

The court went beyond ruling in favor of standing for the individual transgender persons and gave standing to three homosexual-rights activist and litigating organizations, the Human Rights Campaign, the Gender Justice League, and the American Military Partner Association, even though, the court conceded, those “organizations’ individual members” were not involved.   Thus, the organizations are not “friends” (amici) of the court offering legal arguments on behalf of individual parties, they are now actual parties in the case, which means that a judgment must be rendered on their own claims, quite apart from what happens to the individual plaintiffs.  It also means that those three homosexual-rights organizations have established the foundation and precedent for their participation in proceedings involving any military law or policy. 

In addition, there is still one more party that has been certified by the court: the state of Washington.  The court allowed Washington to join the suit in the exercise of its “sovereign” and “quasi-sovereign interests.”  Whereas formerly states could sue the federal government to only protect their own laws and to defend federalism, in recent years the federal courts have liberalized the standing of states to directly take on more federal laws and other acts of the federal government.  Today, the federal courts are increasingly allowing states to defend their “sovereign” and “quasi-sovereign” interests against the federal government by asserting generalized justifications involving the health, safety, and welfare of their citizens.  This kind of standing has been the basis for state efforts to block President Trump’s executive orders on refugees and the Department of Justice’s policy on sanctuary cities. The Seattle district court endorsed the state of Washington’s allegations that the Presidential Memorandum has an effect on its ability to get persons to enlist in the Washington State National Guard “and thereby protects its territory and natural resources.” (From invasion?). And likewise: in “protecting its residents from discrimination.”  Thus, like the organizational plaintiffs, the state of Washington has established a precedent for its participation in the military policy of the federal government. 

In its ruling on the standing of the individual and organizational plaintiffs, the Seattle district court said nothing about any of the other and normal limitations of standing.  The court gave no consideration to the question whether the organizational plaintiffs and the state of Washington should be denied standing because of the rule prohibiting third parties from raising the claims and rights of others.  And the court did not consider at all the most elemental structure of the Constitution itself, which gives the national government exclusive power over the national defense and regulation of the military, including the “raising” and “maintaining” of the armed forces.

Three constitutional violations

In issuing an injunction against the Presidential Memorandum, the Seattle court decided that the plaintiffs were likely to succeed on three different constitutional bases.  First, the court found an equal protection violation.  The court decided that “transgender status” was a “quasi-suspect classification” requiring intermediate scrutiny.  The Supreme Court has designated race and sometimes but not always alienage as suspect classifications requiring “strict scrutiny.”  And since 1971, in the case of Reed v. Reed, the Court has given intermediate scrutiny to sex classifications.  But despite its four homosexual-rights decisions, the Court has still not designated homosexuality, much less transgenderism, as suspect or quasi-suspect categories requiring greater scrutiny.  Thus, with respect to transgenderism, the Seattle district court has gone well beyond the Supreme Court.

The Seattle district court essentially held that the Obama administration’s “study” concluding that transgenders would not affect military effectiveness was final and could not be re-opened or contradicted.   Additionally, the court decided that the unique medical conditions of transgenders, e.g. “gender dysphoria,” should not penalize transgenders because “all service members” (emphasis in original) have medical problems.  Finally, after reviewing the case of Rostker v Godlberg (1981) in which the Supreme Court upheld registration for the military draft for men only, the Seattle court rejected the argument of the government that the court should defer to the executive about military personnel.  In Rostker, the Seattle court countered, the Supreme Court had deferred to the Congress under its constitutional power over the military because the Congress had engaged in a considered process of drafting and enacting the military draft.  By contrast, President Trump, the court said -- ignoring the Presidential Memorandum -- had announced “the prohibition on military service by transgender” individuals “on Twitter, abruptly and without any evidence of considered reason or deliberation.”  The court included the actual twitters, with the President’s picture on each twitter, in its ruling.

As a second constitutional violation, the Seattle court, citing the Fifth Amendment and Obergefell, the Supreme Court’s second gay marriage decision, held that President Trump had violated the substantive-due-process rights of transgender persons “to make decisions concerning bodily integrity and self-definition.”  The old concept of “substantive due process,” with its grounding in the Lochner (1905) case, is seldom explicitly invoked today.  Justice Kennedy, writing for the 5-4 majority in Obergefell, did not mention substantive due process at all – although that is what Chief Justice Roberts accused him of in his dissent.    

Finally, the Seattle court found a violation of the Free Speech Clause of the First Amendment because under the Trump Memorandum transgenders could not openly express their sexuality without being subject to discharge from the military or other adverse actions.  Others in the military may express their sexuality, the court said, but transgenders may not.  Therefore, they were the victims of unconstitutional content-based restrictions of their free-speech rights.   No Supreme Court decision has ever identified sexuality-expression as free speech, and the Seattle court cited none.  Curiously, the court referred to Brown v. Glines (1980), in which the Supreme Court upheld speech restrictions on circulating petitions on military bases.

Overall, then, a longstanding and heretofore unchallenged regulation of the Department of Defense has suddenly been found to violate no fewer than three separate provisions of the Constitution.  Yet, the Seattle court could not cite any Supreme Court case, even after the Court’s four homosexual-rights decisions, in support of its ruling establishing transgenderism as a constitutional category.

The Seattle district court was scornful of and gave almost no consideration to the government’s contentions questioning the effect of the integration of transgenders on “military effectiveness, unit cohesion, and preservation of military resources.”  Today, forty-four years after the end of the military draft, and with an ever-decreasing percentage of Americans having ever served in the military, the unique status and characteristics of the military may not be understood.  To take the example of the medical costs involving transgenders, the court answered that all military personnel have medical costs.  The court is apparently unaware that a host of medical conditions, including conditions as simple as asthma or high-blood pressure, can disqualify recruits from enlistment because any recruit represents a potential life-long cost to the government as a recipient of veterans’ benefits.

Taking everything into account, the Seattle district court treated the military as just another environment in which to promote the contemporary agenda of self-expression, personal autonomy, and redress of dignitary insults and stigmatic injuries.


Thomas R. Ascik, a Marine Corps veteran, retired as an assistant United States attorney.



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