Strange ACLU lawsuit challenges Trump ban on new transgender troops

Strange ACLU lawsuit challenges Trump ban on new transgender troops
Image: American Military Partner Association

“The American Civil Liberties Union has filed a lawsuit challenging President Donald Trump’s ban on transgender individuals joining the military. The federal lawsuit was filed in Maryland on Monday by the ACLU of Maryland on behalf of several service members who are transgender.” So reports the Associated Press.

This lawsuit’s challenge to the ban on transgender applicants should be dismissed for lack of standing. The plaintiffs are service members who have already joined the military, and thus are not directly affected by the “ban,” which applies only to transgender people who seek to join the military.

Only people who are tangibly affected by a policy have Article III standing to challenge it in court. People like these plaintiffs have no standing to a policy that applies only to other people, who are not already in the military, but who wish to join it. Supreme Court rulings make this clear. (See DeFunis v. Odegaard, 416 U.S. 312 (1974); Blum v. Yaretsky, 457 U.S. 991, 1001 (1982)).

As the Associated Press notes:

Trump directed the Pentagon on Friday to implement the ban on transgender individuals joining the military, which he first announced in a tweet. He also gave to the Pentagon the authority to decide the future of openly transgender people already serving. The lawsuit says Trump’s policy violates the equal protection rights of transgender service members who now have ‘grave reason to fear for their careers.’

This lawsuit, known as Stone v. Trump, is baseless. As I noted earlier, a transgender ban does not violate “equal protection.” That’s because the ban on transgender applicants substantially advances important government interests such as military effectiveness and unit cohesion, and because it also promotes fiscal economy.

More importantly, the Supreme Court has said that the military receives substantial deference as to its decisions to exclude entire categories of applicants, even when such exclusion would be deemed unlawfully “discriminatory” or repressive in civilian life. (See Goldman v. Weinberger, 475 U.S. 503 (1986) (upholding ban on wearing of religious caps, even though they are protected in civilian workplaces by the Civil Rights Act)); Rostker v. Goldberg, 453 U.S. 57 (1981) (upholding the male-only draft); Brown v. Glines, 444 U.S. 348 (1980) (upholding restrictions on expression on military bases); see also Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) (upholding the ban on gays in the military that once existed).

Moreover, people like these plaintiffs lack standing to challenge a policy merely because they “fear” it may later be extended to apply to them. Such a challenge also is legally barred as unripe under the ripeness requirement laid down by the Supreme Court.

Excluding transgender applicants is perfectly rational, and will save taxpayers money. As Stars and Stripes reported in September 2016, “The Pentagon expects to pay between $40,000 to $50,000 during the course of a service member’s life to treat gender dysphoria.”

As I observed earlier:

There are sound medical reasons to disqualify from service those who identify as transgender, including surgeries and daily hormones which also interfere with scheduled military training and ability to be deployed. Diabetics cannot serve for similar reasons. The taxpayer money that would have been spent on costly and risky elective surgeries and decades of synthetic hormones that can cause cancer, in an effort to change sexual appearance, would be much better spent on treating our combat wounded soldiers and our veterans, and on buying equipment to keep our soldiers safe.

As Robin Beres of the Richmond Times-Dispatch, who spent 23 years in the military, recently observed, recruiting transgender troops is “an expensive and dangerous policy that will cost millions, if not billions, of dollars and could severely impact unit readiness. It is rushed, ill-prepared, and blind to its impact on the vast, vast majority of active duty service members — especially females.”

Transgender troops cost the Pentagon more money, on a per-person basis, than the average soldier does. Even supporters of recruiting transgender applicants are forced to admit that.

The ACLU doesn’t seek simply to force the military to admit applicants who have already had a sex change but also to force the military to pay for sex changes and ongoing sex-change related expenses.

The ACLU’s Chase Strangio says that any refusal to pay for such expenses would be “outrageous and unconstitutional,” even though the military does not pay for similarly expensive cosmetic surgeries and treatments for non-transgender troops.

Thus, advocates of transgender troops effectively are demanding preferential treatment. The Constitution does not require preferential treatment of minority groups anywhere, much less in the military. (Schuette v. Coalition to Defend Affirmative Action, 134 S.Ct. 1628 (2014) (Supreme Court ruling that Michigan could ban affirmative action by cities and state colleges)).

The Obama administration policy Trump is revisiting required troops to pretend that someone who had not even gotten a sex change was of the sex he identified with, redefining sex in purely arbitrary and subjective terms. As Robin Beres points out, inclusion of such “transgender” troops raises serious privacy issues that threaten unit cohesion:

An Army transgender training module … describes a potential scenario for a soldier who is undergoing a male-to-female gender-marker change (without sex reassignment surgery) and is placed in women’s barracks.

This new female — who still has her penis — will be using the women’s showers and bathroom facilities. The rules instruct all other female soldiers that they must be respectful of the new girl’s concerns and privacy issues. The transgender soldier, however, is neither required nor expected to modify or adjust her behavior in consideration of her new berthing mates.

The Army insists that dignity and respect must be shown to every service member. Yet, its bizarre demands that female-born females keep quiet — and pretend to ignore visible biology in a shower — are incredibly disrespectful to women soldiers.

The service is basically telling women that their humiliation and any other emotion they may experience are nothing compared with the feelings of a tiny fraction of service members.

Judge Marvin J. Garbis, to whom the ACLU’s lawsuit has been assigned, should dismiss it because all of its claims are either meritless, or unripe, or lacking in Article III standing.

The National Center for Lesbian Rights has also filed a lawsuit on behalf of transgender troops, which is pending in the U.S. District Court for the District of Columbia. (See Doe v. Trump, D.D.C. Case No. 17-cv-1597, pending before Judge Colleen Kollar-Kotelly).

Jerome Woehrle

Jerome Woehrle

Jerome Woehrle is a retired attorney and author, who writes about politics.


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