Stanford’s Jane Schacter Discusses Ban on Transgender Individuals Serving in the Military

On January 22, the U.S. Supreme Court allowed the Trump Administration’s ban on transgender individuals openly serving in the military to take effect while cases challenging it proceed. In the discussion that follows, Stanford Law Professor Jane Schacter, an expert on constitutional law, as well as gender and sexuality and the law, discusses the case.

When did the US military allow openly transgender people to serve? And is there an estimate of the number now serving?

In 2015, Ashton Carter, Secretary of Defense in the Obama Administration, commissioned a study to determine whether there were any reasons to continue a longstanding ban on military service by transgender people who wished to serve. The ban on service by lesbian, gay and bisexual persons had been lifted in 2010, but the ban remained largely in force for transgender people. A 2015 report by the Rand Corporation (an entity that had performed studies on many areas of military policy) concluded that there was no evidence that open service by transgender persons would have a negative impact, and that medical costs would not be substantial. In 2016, Secretary Carter announced that openly transgender persons who wished to serve would be admitted as long as they met the rigorous standards applied to all applicants. That policy was due to go into effect in January 2017. It was delayed by the Trump Administration and then repealed in its entirety by an unexpected presidential tweet announcing that no transgender persons would be permitted to serve. That policy was then refined by the Department of Defense and implemented in 2017.

Jane S. Schacter
Stanford Law Professor Jane S. Schacter

The 2017 policy has been challenged in multiple lawsuits around the country. At various points, lower courts enjoined its enforcement while the litigation was pending. The effect of these injunctions was that transgender persons were, in theory, permitted to seek entrance to the military and many did apply. As I understand it, however, most of these applications have met repeated delays, so very few of these new applicants have been admitted. The 2017 policy did, however, have a reliance exemption for those already in the military who came out as transgender once the Obama Administration announced it would lift the ban. That exemption applies to about 900 service members. Reports suggest there are thousands more transgender members already serving, but reluctant to identify themselves given the hostility directed at them by this administration.

Can you explain the key elements of President Trump’s order prohibiting transgender people from serving in the military—and the rationale offered for the order?

The Trump Administration policy bans service by openly transgender persons, except those grandfathered in by the reliance exemption I mentioned above. As expressed in the policy, persons with a diagnosis of “gender dysphoria” may not serve if they wish to transition. They must continue to live in the gender they were assigned at birth, no matter how great a dissonance they may feel between that gender and the gender with which they identify today. Notwithstanding the ready availability of effective treatment for gender dysphoria, in other words, the price of serving in the military is denying one’s gender identity. A thought experiment: If a non-transgender person imagines being told that military service is contingent on agreeing to live as a person of the opposite sex, one might begin to get some rough sense of what this policy demands.

As between the President’s tweet and the Department of Defense’s policy, there have been various rationales offered, including that transgender soldiers receiving treatment would be medically unfit to serve, would undermine unit cohesion and the need for military readiness and lethality, and would require medical care costly for the military. Claims of this sort have been widely studied and rebutted not only by the Rand Report, but by more recent reports issued by former military leaders. Indeed, some have argued that the discriminatory policy itself undermines readiness. And the Trump Administration’s decision to allow continued service by those who came out as transgender under the Obama Administration policy itself suggests there is no great threat to cohesion or lethality. There is simply little evidence that transgender service members pose any problem. The debate here is reminiscent of the earlier ban on gays in the military. The military spent years claiming that service by openly gay members would undermine unit cohesion and create all kinds of other problems. There were many lawsuits. The ban was lifted in 2010 and none of those problems materialized.

What were the legal challenges to President Trump’s order?

The policy has been challenged around the country as violating the equal protection, due process and First Amendment rights of those wishing to serve. Many lower courts have been sympathetic to these claims, though the Court of Appeals for the District of Columbia handed the Administration a preliminary victory on appeal a few weeks ago when it ordered that a lower court’s injunction be dissolved. The plaintiffs’ basic claim is that they are being subjected to disqualification for no good reason, suggesting simple bias. The case may ultimately come down to how much deference the Court gives to the military’s judgment, and there are reasons to believe that deference may be substantial. If so, and much to the chagrin of those transgender people who wish to serve their country, the weak factual basis for the policy may not end up mattering all that much.

What do you make of today’s Supreme Court ruling?

The Court handed each side some measure of a victory today.  The Trump Administration wanted the Supreme Court to take the case now, leapfrogging the normal appeals process. This has become an increasingly frequent request by this administration, which is frustrated by the many injunctions courts have placed on several of their controversial policies. The Court denied that request, meaning the lawsuits will go through the normal appellate process before reaching the Court. But it dealt a significant loss to the plaintiffs in allowing the Trump Administration policy to go into effect, thus preventing new recruits from entering the military if they are openly transgender and wish to transition to the gender consistent with their gender identity.

What’s next for this case? Will the Supreme Court hear the case?

The Supreme Court will not hear the case this term. Litigation will proceed in the lower courts. At some point, the losing party in one or more of those cases will ask the Court to take the case on its merits and the Court will decide whether to do so. What changed today is that the policy will shortly begin to be enforced, and new recruits barred, if they wish to serve consistent with their gender identity.  (There is apparently an injunction still in place in one case that was not before the Supreme Court, but I imagine the government will seek prompt relief from that injunction based on the Supreme Court’s action.)

Jane S. Schacter is the William Nelson Cromwell Professor of Law at Stanford Law School. Her scholarship focuses on statutory interpretation and legislative process, constitutional law, and sexual orientation law.