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The right to fight: Trump and the military transgender ban

After tweeting about a prohibition on transgender individuals serving in the military, President Trump and the Pentagon produce further details about the ban.

At the beginning of President Obama’s eight years in office, lesbian, gay, bisexual, and transgender citizens could not serve openly in the military. The infamous “Don’t Ask, Don’t Tell” policy, signed by President Clinton, prevented the military from inquiring about a service member’s sexual orientation, as well as prevented service members from disclosing their sexual orientation while continuing to serve. President Obama signed an executive order in July of 2011 revoking the policy and allowing lesbian, gay, and bisexual troops to serve freely; however, the ban was not lifted for transgender individuals until 2016.

[T]he ban came as a shock to all, including the Pentagon who did not know about any proposed ban.

Since the “Don’t Ask, Don’t Tell” ban was lifted, the number of transgender individuals serving has been generally unknown. The RAND corporation estimates the number of transgender individuals serving in the military to be as low at 1,320 and as high as 6,630. Often transgender service members do not disclose to their fellow service members for fear of retaliation. It is against the military’s policy to discriminate against anyone because of their sexual orientation or gender identity; however, enforcing such a policy across multiple agencies has been challenging.

Last month, President Trump announced via Twitter that the military was to institute a new ban on transgender individuals from serving in any capacity. Citing “tremendous medical costs and disruption the transgender in the military entail,” the ban came as a shock to all, including the Pentagon who did not know about any proposed ban. Without any guidance, the country as well as the military, were uncertain what the ban actually meant and how it affected transgender individuals.

For active service members, the ban could mean that they would have to go back into hiding for risk of not only retaliation, but also discharge. Under “Don’t Ask, Don’t Tell,” active service members could be discharged for identifying within the LGBT community. A discharge is a heavy burden for service members to bear when they separate from the military. Such a discharge can prevent the veteran from receiving medical care from the U.S. Department of Veteran Affairs (VA) and even bar housing applications to the U.S. Department of Housing and Urban Development (HUD) or other state housing authorities.

Currently, the VA does not provide gender reassignment surgery, but does provide hormone treatment and counseling for transgender veterans.

For veterans, the ban could extend to the VA and prevent care for transgender individuals who either transitioned while in the military, or who transitioned after their separation. Since “Don’t Ask, Don’t Tell” was repealed, the VA set up guidelines for how it would treat LGBT veterans, including having an LGBT coordinator at each VA hospital. Currently, the VA does not provide gender reassignment surgery, but does provide hormone treatment and counseling for transgender veterans. While President Trump’s ban does not mention transgender veterans, it is still uncertain if the VA will stop providing any kind of treatment to transgender veterans.

Congress’s response to the ban has been mixed. Representative Vicky Jo Hartzler (R-MO) stated her approval of the ban saying, “President Trump’s decision today to rescind Obama’s transgender military policy has the best interests of the military in mind, and I thank him for taking this decisive action.” House Minority Whip Representative Nancy Pelosi (D-CA) decried the ban stating, “Prejudice, not the national defense, is behind President Trump’s cruel decision to kick transgender troops out of the military.” Senator John McCain (R-AZ), chairman of the Senate’s Armed Services Committees, responded with disappointment concerning both how the ban was announced and the implications of such a ban. His official statement read, “We should all be guided by the principle that any American who wants to serve our country and is able to meet the standards should have the opportunity to do so and should be treated as the patriots they are.”

President Trump has since clarified the ban with a memorandum released on August 25th. The memorandum prevents the Department of Defense (DOD) from funding any in-service medical treatments to transgender service members. Additionally, the DOD is directed “to determine how to address transgender individuals currently serving based on military effectiveness and lethality, unitary cohesion, budgetary constraints, applicable law, and all factors that may be relevant.”

Between $2.4 million and $8.4 million was spent on transgender-related healthcare procedures, a total of .0004 percent to .0017 percent of the total healthcare expenditures for that year.

President Trump has cited medical costs as one of the main reasons for the ban; however, overall cost of transitional medical procedures for transgender service members is minimal when compared to the overall healthcare expenses of the military. The RAND corporation recently studied these expenses. In 2014, the military spent $49.3 billion on healthcare. Between $2.4 million and $8.4 million was spent on transgender-related healthcare procedures, a total of .0004 percent to .0017 percent of the total healthcare expenditures for that year. In the same year, the military spent $84 million on erectile dysfunction medications like Viagra and Cialis.

Lambda Legal, a LGBTQ legal ally, filed a suit on behalf of two transgender individuals who wished to enlist in the Army, as well as a current service member seeking appointment to an officer position. The Human Rights Campaign and the Gender Justice League joined as additional plaintiffs. An interesting, and perhaps surprising, basis for their complaint is that the ban violates free speech. The complaint states that the ban violates the freedom of speech by forcing the individual plaintiffs to be silent about their gender expression.

Meanwhile, the organizational plaintiffs state that their members who identify as transgender and who are either in the military or who are veterans would have to hide who they are and will not be able to conduct themselves according to their gender expression. As Sarah McBride, the Human Rights Campaign Press Secretary, stated in regards to the ban, “It is an unconscionable and unconstitutional breach of trust for the president to single out brave transgender service members and able recruits for discrimination.”

The ACLU of Maryland likewise filed a complaint, but their argument is based on Equal Protection and substantive due process under the Fifth Amendment. The Fifth Amendment not only protects citizens from due process violations against enumerated rights, but also the fundamental rights implicit in the concept of ordered liberty. The plaintiffs argue they currently suffer or will suffer violations to their substantive due process rights because “they are denied an opportunity to demonstrate continued fitness for duty; the ability to enlist in the U.S. Armed Forces despite being fit to serve; and/or the opportunity to receive medical care on an equal basis as service members who are not transgender.”

All citizens, if they qualify, should be allowed to serve to protect our country and our freedom.

As the Pentagon forms a policy around President Trump’s memorandum, the transgender community will remain in limbo. Transgender service members have already been told that they are no longer welcome in their units because of the ban. All citizens, if they qualify, should be allowed to serve to protect our country and our freedom. In the past, the military delayed integration of certain groups—females, African Americans, lesbian and gay individuals—based on an alleged “lack of readiness and unit cohesion”—the same factors used by President Trump in his memorandum on the ban. As each of these groups was integrated into various units, the military has not weakened; in fact, the military has adapted to the changes and continues to thrive because of the diversity of these groups. To many, banning individuals from service does not help readiness, but it does weaken American values.

Claire Scott
About Claire Scott (15 Articles)
Claire Scott is a third year law student and serves as a Senior Staff Writer for the Campbell Law Observer. Originally from Chesapeake, VA, Claire is a Campbell University alumi. After her 1L summer, she worked in the Harnett County NC District Attorney's Office as well as the District 11A Veteran Treatment Court. Her legal interests include estate planning and veteran law.