Thursday, August 3, 2017

Trump Can’t Fire Transgender Troops

Professor Maureen Johnson
By Professor Maureen Johnson

This op-ed originally appeared in the Los Angeles Daily Journal

Just over two weeks ago, the House of Representatives — with bipartisan support — rejected an amendment to a defense spending bill that would have denied medical coverage for gender transition costs for members of the U.S. military. More particularly, 24 Republican representatives joined with Democrats to shut down the amendment. Notably, CNN reported that Defense Secretary James Mattis privately lobbied against the amendment through direct conversations with the bill’s author, Missouri Rep. Vicky Hartzler, as well as with other Republican representatives.

President Donald Trump’s response? There’s more than one way to skin a cat: If you can’t eliminate medical coverage for transgender-related services, simply eliminate transgender service members from the military.

Last Wednesday, Trump tweeted that he will prohibit transgender people from serving in “any capacity” in our military. To be clear, a series of three tweets in the early morning hours of July 26 proclaimed that the United States military would not “accept or allow” transgender people to serve, presumably meaning that even those transgender members currently serving — which early estimates suggested may be as many as 15,000 — will be summarily discharged, without any regard or respect for their valor or the contributions they already have made to our country.

Trump’s announcement reminds me of a famous poem “First They Came,” by Martin Niemoller, which concludes, “Then they came for me — and there was no one left to speak for me.” A similar fate awaits the rest of society if we allow the president’s promise to stand. If a president can fire as many as 15,000 transgendered individuals with a tweet, who’s next? Trump’s tweet justified the ban based upon purported “tremendous medical costs,” despite the fact that a RAND study estimated the costs would likely be only about $2.4-8.4 million — a small fraction of the military’s overall budget. Could Trump summarily fire women from the military because of increased costs for pregnancy? Could he discharge disabled military personnel for similar reasons?

White House Press Secretary Sarah Huckabee Sanders suggested “military cohesion” justified the ban. This argument was made and discredited during the repeal of the “Don’t Ask, Don’t Tell” policy. Will that repeal be rolled back? If a border wall is built, will Mexican-American service members be terminated? What about Muslim soldiers? What about anyone who doesn’t swear allegiance to Trump, as opposed to our country?

A ban on transgender people serving in “any capacity” is unconstitutional. As was seen in the recent litigation pertaining to the travel ban in Trump v. Hawaii, Trump’s tweets will no doubt land on the pages of briefs filed at the U.S. Supreme Court. As will the timing of Trump’s announcement on the heels of the House of Representatives’ rejection of the Hartzler amendment.

Refusing to allow transgender people to serve — and indeed, kicking to the ground those who already do — violates the equal protection afforded under our Constitution. Our constitutional law jurisprudence dictates that such a policy would have to be justified at least under “rational basis” review, if not more heightened scrutiny. And there is no legitimate rational basis to preclude transgender members from serving in our military. Support for that position comes from Romer v. Evans, where the U.S. Supreme Court noted that animus or disapproval of a group does not constitute the type of legitimate reasoning that can withstand constitutional scrutiny.

Bipartisan opposition to a ban on transgender service immediately found a national voice in the words of traditionally revered Republican senators, such as Sen. John McCain, as well as Sen. Orrin Hatch, who tweeted the simple principle, “Transgender people are people and deserve the best we can do for them.”

Trump’s ban on transgender service may well play out in both our legislative and judicial branches, possibly costing more than the estimated medical coverage. While many speak of “resisting” the Trump agenda, the focus should instead be on uniting and fighting for all of those who are detrimentally affected either personally or peripherally by the harsh policies put forward by this administration.

This includes the vast majority of our country and even those not cloaked with citizenship, such as the many undocumented women who even in sanctuary cities are afraid to report sexual assaults for fear of deportation. It also includes the many millions of Trump supporters who will lose health coverage under the current proposals to repeal the Affordable Care Act. And as of yesterday morning, this includes transgender military personnel who awoke to a tweet from their commander-in-chief that essentially instructed them to pack up and leave.

How can we stand up to this infringement on constitutional rights? Write or call your legislators and tell them you won’t stand for this. Sign one of the many petitions circulating to implore President Trump to reverse course. Or show your support by lending your assistance to a civil rights organization like the American Civil Liberties Union. Do something to speak for these service members now — or else, the time may come when no one is left to speak for you.

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