This shouldn’t be a hard case for trans service members, but it is.
The constitutional case against Trump’s new ban on transgender service members, abruptly announced over Twitter on Wednesday morning, should be an easy victory for trans men and women who choose to serve.
But it won’t be — thanks to a long tradition of judiciary deference on matters relating to the military and a Supreme Court that does not yet appear to have wrapped its head around trans rights.
If Donald Trump had banned transgender people from working in say, the Department of Commerce, the case against him should be a slam dunk. As the Supreme Court held in Romer v. Evans, the mere “desire to harm a politically unpopular group,” decoupled from any other rational justification, “cannot constitute a legitimate governmental interest.” And it is hard to imagine what other purpose could motivate such a ban. Gender identity has very little to do with someone’s ability to perform job tasks like compiling government data.
In theory, challenging Trump’s ban on transgender people serving in the military should also be an easy case. Trump tweeted that he will not allow trans people to serve “in any capacity in the U.S. military.” As Columbia law professor Jamal Greene notes, even if you accept the most closed-minded arguments about trans people disrupting units engaged in dangerous, high-stress activity, “the military employs cooks, medics, attorneys, engineers, postal workers, journalists, photographers, chaplains, chemists, and workers in countless other fields.” It’s hard to see what someone’s gender identity has to do with their ability to cook breakfast or perform legal research.
It should be noted that, we do not yet know what the Trump administration’s ban will look like in all of its particulars. General Joseph Dunford, the chairman of the Joint Chiefs of Staff, told the military that “we will continue to treat all of our personnel with respect” until Trump hands down an actual order and not simply a series of tweets. The contours of the trans ban may also need to be traced out in a regulation that answers questions such as whether existing trans service members will abruptly lose their jobs.
But when the final ban does arrive, lawyers challenging it face a brutal obstacle: the Supreme Court’s 1981 decision in Rostker v. Goldberg.
Rostker involved a more familiar form of gender discrimination. In 1980, Congress and President Jimmy Carter agreed to reinstate the Selective Service System. Significantly, though Carter wanted a gender-neutral program, Congress determined that only men should register for a potential draft.
By 1980, it was well established that laws that treat men and women differently stand on constitutionally dubious ground. As the Supreme Court established in Craig v. Boren, “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” Shortly after Rostker, the Court went even further, proclaiming that gender discrimination requires an “exceedingly persuasive justification.”
And yet Rostker is less a monument to the Constitution’s disdain for discrimination and more one to the Court’s reluctance to wade into military affairs. Rostker, Justice William Rehnquist wrote, “arises in the context of Congress’ authority over national defense and military affairs, and perhaps in no other area has the Court accorded Congress greater deference.”
“It is difficult to conceive of an area of governmental activity in which the courts have less competence,” Rehnquist continued. “The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.”
Rostker upheld the Selective Service System’s gender discrimination, something it would have never permitted outside of the military context.
It is hard not to see the similarities between Rostker and a future suit challenging discrimination against trans service members. Moreover, though the discrimination now confronting trans people is far more restrictive than the discrimination at issue in Rostker — neither men nor women are outright forbidden from serving in the military— the Court’s current majority has not shown much sympathy to victims of anti-trans discrimination.
Last year, during the period when the Supreme Court had only eight members, a federal appeals court struck down a Virginia school district’s policy preventing trans students from using bathrooms that align with their gender identity. The Supreme Court, however, prevented that decision from going into effect, with Justice Anthony Kennedy — a justice who normally votes with the liberals in gay rights cases — taking the conservative position.
Justice Stephen Breyer, a Clinton appointee, cast the key vote to stay the lower court’s decision, though he said that he did so merely “as a courtesy” because “we are currently in recess” and “granting a stay will preserve the status quo.”
The Court’s median justice, in other words, appears far less sympathetic to trans rights arguments than the median justice in 1980 was towards challenges to traditional gender discrimination. That reality bodes ill for plaintiffs hoping the Court will look past Rostker.
The grim legal hurdle facing trans service members challenging Trump’s ban was originally published in ThinkProgress on Medium, where people are continuing the conversation by highlighting and responding to this story.