Is Trump’s Ban on Transgender Military Service Legal?

LGBT advocates say no, but the Supreme Court is a wild card

Last Updated: July 26, 2017 @ 4:10 PM

LGBT advocates promise to sue President Trump over his plans to ban transgender people from serving in the military. Would they win?

As you could probably guess, LGBT advocacy group Lambda Legal said yes.

“As a Marine Corps veteran, a trans woman, and an American, I am disgusted. Discrimination has no place in the country I love,” Lambda Legal Staff Attorney Sasha Buchert said in a statement.  “We will fight and we will win.”

Trump, who did not serve in the military due to bone spurs in his feet that healed with surgery, said his ban is needed to protect the military from “the tremendous medical costs” and “disruption” caused by Obama’s 1-year-old policy allowing transgender people to serve and enlist in the military.

“The proposed justifications are just empirically false,” Lambda Legal senior staff attorney Peter Renn told TheWrap. “We can show that the military is better served if we allow transgender people to serve,” Renn said.

Renn referred to a 2016 independent study that concluded transgender personnel in the military “would likely be a small fraction of the total force and have minimal impact on readiness and health care costs.”  The study was conducted by Santa Monica think tank Rand Corporation.

Some legal experts predict that Trump’s ban will be struck down by the courts — including the Supreme Court — for violating the civil rights of transgender people.

In an analysis for LawNewz, Colin Kalmbacher wrote that the Supreme Court probably would rule against Trump based on its same-sex marriage ruling that it is unconstitutional for the government to discriminate based on “gender identity.”

“Ultimately, as Don’t Ask, Don’t Tell before, Trump’s attack on transgender people is destined to fail,” Kalmbacher wrote.

The wild card, however, is the Supreme Court in the era of Trump.

The court was bitterly divided when it decided to protect same-sex marriage in its 2015 Obergefell v. Hodges case.

The court voted 5-4 to find that government bans on same-sex marriage violate the constitution. But the majority’s use of the term “gender identity” suggests that the decision could extend constitutional protection to transgender people.

“The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” Justice Anthony Kennedy wrote for the majority two years ago.

Justice Kennedy, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan signed Justice Kennedy’s opinion.

But Chief Justice Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito voted against Kennedy’s decision.

Trump’s appointment of Justice Neil Gorsuch earlier this year did not change the balance of conservative and liberal judges, so his appointment probably would not change the outcome of a legal challenge to Trump’s ban.

If Kennedy, who often provides a swing vote, retires,  the outcome of a legal challenge to Trump’s policy becomes more uncertain. (There has been recent speculation he will retire soon.)

If Kennedy does retire, Trump would be able to appoint a second conservative judge and create a new conservative majority on the court.

The court has a long tradition of obeying its own past decisions, and rarely decides that its previous rulings were wrong and must be overturned. But tossing out old decisions is not unprecedented.

It is possible that a new conservative majority would decide that its 2-year-old same-sex marriage case was wrong. Or that the same-sex marriage case is correct — but does not protect transgender military personnel.

Renn said it is too early to know how or when the policy would be put in place, or whether all transgender personnel would be immediately discharged.