The Supreme Court and the Trans Military Ban: A Likely Reinforcement

An editor’s note from May 6th highlights a critical development: The Supreme Court has temporarily blocked a lower court’s ruling, effectively allowing President Donald Trump’s ban on transgender individuals serving in the military to potentially take effect. This decision, opposed by the Court’s dissenting Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, suggests that transgender service members may soon face expulsion from the armed forces.

This legal battle originates from President Trump’s directive, issued shortly after his second term began, aiming to prohibit transgender individuals from serving in the US military. The Defense Department’s policy, designed to implement this order, initially slated the dismissal of transgender service members for March 26th, but that was stayed by a court order.

The case, United States v. Shilling, now rests before the Supreme Court. The Trump administration argues that its policy doesn’t directly target transgender individuals but rather prohibits those with gender dysphoria from serving. However, critics argue this is a deceptive and unsupported claim. The author implies that the court has previously rejected similar assertions.

Gender dysphoria, according to the American Psychiatric Association, describes the psychological distress arising from a conflict between one’s assigned sex at birth and their gender identity, a common experience among transgender individuals. The article contends that framing a ban on transgender service as a ban on gender dysphoria is akin to justifying Jim Crow laws as targeting individuals with high melanin levels.

Despite the perceived weakness of the Trump administration’s argument, the article suggests that the Supreme Court, adhering to its historical pattern of extreme deference to the military, is likely to uphold the ban. The author posits that the Court may follow precedents that prioritize military decision-making, even at the expense of individual rights.

Established legal precedent dictates that the government cannot circumvent anti-discrimination laws by targeting traits closely associated with a particular identity. As exemplified in Bray v. Alexandria Women’s Health Clinic (1993), "a tax on wearing yarmulkes is a tax on Jews." However, the article foresees the Court’s likely reinstatement of the trans military ban, viewing the current case as a continuation of a previous legal struggle during Trump’s first term.

The Trump administration’s initial attempt to ban transgender military service, while containing some exceptions absent in the current ban, was challenged in lower courts. The Supreme Court, in 2019, reversed those decisions with a 5-4 vote along party lines. The Court’s composition has since shifted further to the right, now holding a 6-3 Republican supermajority.

The article acknowledges that the earlier decisions reinstating the ban may not have been entirely unjustified, given the Supreme Court’s historical allowance of actions by the military that would be deemed unconstitutional in civilian life.

Judge Benjamin Settle, who blocked Trump’s second-term ban, warned of the potential harm to the United States if the ban were to take effect.

Referencing Goldman v. Weinberger (1986), the article illustrates the Court’s deference to the military. In that case, the Court upheld the military’s right to prohibit Jewish service members from wearing yarmulkes while in uniform. The Court emphasized that "review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society." Goldman reasoned that the military’s need to "foster instinctive obedience, unity, commitment, and esprit de corps" justifies restrictions on service members’ rights that would be unconstitutional otherwise.

The article also highlights the Court’s approval of explicit sex discrimination within the military, referencing Rostker v. Goldberg (1981), where the Court upheld the federal law requiring men, but not women, to register for the draft. This precedent is particularly relevant to the Shilling case, especially in light of Bostock v. Clayton County (2020), which established that discrimination against transgender workers constitutes illegal sex discrimination. Rostker justified this explicit sex discrimination by granting extraordinary deference to Congress in matters of "national defense and military affairs."

These precedents created significant challenges for the plaintiffs contesting Trump’s transgender service ban. The Court’s current conservative majority has shown limited sympathy towards constitutional claims made by transgender litigants.

Judge Benjamin Settle, in his opinion blocking Trump’s second-term ban, emphasized the significant harm it could inflict on the United States. The named plaintiff in the Shilling case, Commander Emily Shilling, a pilot with 19 years of military service and 60 combat missions, exemplifies this point. Shilling alleges that the Navy invested $20 million in her training, expertise that would be lost to the US military if the ban is enforced.

The article concludes by noting that the Constitution does not prohibit the government from causing harm to itself. The Supreme Court’s precedent allows the military to discriminate in ways that other institutions cannot. This represents bad news for those targeted by Trump’s transgender service ban, as the deck is stacked against them, with the court’s history of deference and current composition favoring the ban’s reinstatement. The author emphasizes that this deference is not limited to instances of national security, but also covers administrative decisions, which could be applied to transgender troops. The article also notes that there isn’t any evidence to support that having transgender people in the army negatively affects military performance.