Ruling in favor of military sex changes ignores Supreme Court precedent

Ruling in favor of military sex changes ignores Supreme Court precedent
Image: American Military Partner Association

The Supreme Court ruled in Geduldig v. Aiello (1974) that the Constitution’s equal protection clause doesn’t require the government to accommodate sex-related conditions, such as pregnancy. Non-discrimination is not the same thing as accommodation. Yet a judge in Baltimore somehow ruled Tuesday that the equal protection clause gives transgender members of the military the right to sex-change operations at taxpayer expense. Judge Marvin Garbis’s decision in Stone v. Trump is simply wrong to ignore controlling Supreme Court authority.

That’s not the only reason Judge Garbis’s decision was wrong. His ruling treated discrimination against transgender service members as being subject to the same heightened scrutiny that applies to sex-based discrimination.

The Supreme Court has said that sex-based discrimination is generally unconstitutional, but it has never said the same about discrimination against transgender people. And while it has usually struck down discrimination based on sex, it upheld the male-only draft in Rostker v. Goldberg against a constitutional challenge, giving the government more leeway to discriminate in the special context of the military.

And even in contexts where sex discrimination is forbidden (such as civilian government employment), the Supreme Court has made clear that it isn’t unconstitutionally discriminatory to give unfavorable treatment to people with a sex-linked characteristic, such as pregnancy (such as failing to provide disability benefits to pregnant women when people with other temporary disabilities are eligible for such benefits, which the Supreme Court ruled was perfectly constitutional under its Geduldig decision. Congress responded to that decision by passing the Pregnancy Discrimination Act, which covers civilian employees, but military service members are not covered by the Act’s ban on pregnancy discrimination.)

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Supreme Court decisions have mandated judicial deference to the government’s decisions about how to run the military, even when that involves discrimination that would be forbidden in civilian life. But as Daily Caller Supreme Court reporter Kevin Daley notes, Judge Garbis’s ruling subjected such decisions to “intense scrutiny” instead:

Garbis abandoned the typically deferential posture afforded to the executive in cases involving national security, immigration, or the military.

Moreover, his decision was similar to other controversial recent lower-court rulings that “display a fairly shocking dynamic, in which federal judges stop just short of calling government lawyers liars.” As Daley notes, the “Supreme Court has not appeared receptive” to such “intense scrutiny” by “lower courts” of Trump administration policies, as illustrated by its decision to largely reinstate the Trump restrictions on refugee admissions and travel with certain predominantly Muslim countries.

Even putting aside Supreme Court decisions such as Geduldig, it is hard to see why taxpayers should have to pay for sex changes for transgender service members. The military does not pay for similarly expensive cosmetic surgeries and treatments for non-transgender troops. Thus, it is preferential treatment to order it to pay for sex-reassignment surgery.

The Constitution does not require preferential treatment of minority groups anywhere, much less in the military, and it does not require special accommodations for minorities even when doing so would promote a compelling interest.

For example, the Supreme Court ruled that Michigan could ban affirmative action by cities and state colleges, in Schuette v. Coalition to Defend Affirmative Action (2014). The Supreme Court so ruled even though it had earlier concluded that colleges have a compelling interest in preferring underrepresented minority applicants to promote academic diversity.

As I noted earlier, even a complete ban on transgender applicants by the military does not violate “equal protection.” That’s because excluding them from the military substantially advances important government interests such as military effectiveness and unit cohesion, and because it also promotes fiscal economy.

Barring transgender applicants from the military was uncontroversial until recently. It was only in June 2016, when then–Defense Secretary Ash Carter allowed transgender individuals to serve openly and permitted the funding of gender transition treatments and surgeries. He then gave the Pentagon one year to study how to allow transgender individuals to join the military — referred to as accession.

The Supreme Court has said that the government receives substantial deference as to its decisions to exclude entire categories of people from the military, 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).

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.

Judge Garbis’s ruling makes it sound as if it is only Trump, not people who have served in the military, who have misgivings about the feasibility of including transgender troops in the military.

But this is far from the case. As Robin Beres of the Richmond Times-Dispatch, who spent 23 years in the military, observes, 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 Obama administration policy Trump sought to revisit had strange results. It 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.

Jerome Woehrle

Jerome Woehrle

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