At first glance, it would seem the military can discriminate more or less at will. Before its repeal in 2010, the “don’t ask, don’t tell” policy, barring lesbian and gay personnel from serving openly, was almost uniformly affirmed by the courts. Similarly, in 1981, the Supreme Court upheld a national policy requiring men to register for the draft while barring women. That case, Rostker v. Goldberg, relied on an act of Congress, as “don’t ask, don’t tell” cases did. “Perhaps in no other area has the Court accorded Congress greater deference,” Justice William Rehnquist wrote.
I added the emphasis on “Congress” in the quote above, because that’s where Trump’s new ban is vulnerable. It never had anything to do with Congress. Nobody seems to have been involved but Donald J. Trump.
The challengers’ complaint draws a careful contrast: Trump’s overnight, unexpected policy change is radically different from the two-year process that ended in 2016 with an order opening the military to transgender personnel. In the two years before that, there was a direction by the secretary of defense to each branch to reassess the need for a ban; a comprehensive overall analysis by “the leadership of the armed services, the Joint Chiefs of Staff, the service secretaries, and personnel, training, readiness, and medical specialists from across the Department of Defense”; a study by the RAND Corporation on military effectiveness and health costs; a final secretarial directive; the issuance of a 71-page handbook on transgender service; and another set of guidance memos on how each service should integrate trans personnel into the ranks.
Trump, the challengers suggest, reversed this carefully made decision on a whim. “Upon information and belief,” the complaint says, “the president did not consult either the Joint Chiefs of Staff or the Department of Defense before making his announcement.” Indeed, as clearly as military etiquette allowed, Secretary of Defense James Mattis, a coalition of former military officers, and the commandant of the Coast Guard made clear that they did not subscribe to—and perhaps had not even known about—the change in policy. “Members of Congress belonging to both political parties,” the challengers’ complaint notes, have also registered their opposition.
In addition, the official studies cited in the complaint had already uniformly found that Trump’s reasons for banning trans troops—potential distraction from “decisive and overwhelming victory” and “tremendous medical costs”—are not supported by any evidence at all.
The suit doesn’t claim that a commander in chief is required to go through any specific process before issuing an order. But it implicitly suggests that Trump’s action is based not on military principles at all, but on dislike for, and desire to publicly humiliate, transgender people. And every second-year law student learns that that reason—“I don’t like your kind”—is not a “rational basis” for anything. In 1973, the Supreme Court struck down a food-stamp regulation it concluded was aimed at denying benefits to “hippie communes.” In that case, U.S. Department of Agriculture v. Moreno, Justice William Brennan wrote that “a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”
Had Trump been serious about a transgender ban, he could have begun a process to reverse the policy of allowing trans people to serve. That might not have produced good evidence to support the turnaround—but it would have shown at least some concern for executive action as an exercise of reason rather than spleen.
It would also have shown some concern for the power and stature of the office he holds. Instead, Trump has yet again demeaned and damaged that office.