Susan Walsh/AP Law And Order Why Trump’s Ban on Transgender Servicepeople Is Flatly Unconstitutional Here’s another Trump policy likely to get held up in courts.

Richard Primus is the Theodore J. St. Antoine Collegiate Professor at the University of Michigan Law School. He is also counsel for the plaintiffs in a privacy lawsuit against the Trump campaign, Cockrum v. Donald J. Trump for President, Inc. Follow him on Twitter @Richard_Primus.

President Donald Trump’s tweets Wednesday morning proclaiming that no transgender persons should be allowed “to serve in any capacity in the U.S. military” do not have the force of law, and maybe nothing like them ever will. But if the president were to put that edict in an executive order rather than a tweet, the policy it purported to institute would be flatly unconstitutional. As stated, a wall-to-wall ban on transgender Americans in the armed forces could only be understood as rooted in what constitutional doctrine calls animus: that is, the bare dislike of a group of people. And as the Supreme Court has held in cases going back at least to the 1970s, animus is never a constitutionally valid reason for government action.

Probably the most powerful indicator that a complete ban on transgender personnel would be rooted in animus comes from the policy’s enormous breadth. The U.S. military employs many people in combat roles, and perhaps defenders of a transgender ban would imagine trying to defend it by arguing that including transgender personnel in combat units would erode the fighting capability of those units—much as opponents of including gays and lesbians used to argue about the negative effect that openly gay and lesbian troops would have on “social cohesion.” Trump himself explained the move by tweeting that “our military must be focused on decisive and overwhelming … victory,” with the presence of transgender troops being a “disruption.”


Those arguments convince far fewer people today than they did 20 years ago as applied to gays and lesbians, and perhaps the line of reasoning is no stronger as applied to transgender personnel. (The Israeli military, which is not known for compromising its fighting effectiveness out of deference to softheaded social causes, includes transgender individuals in its ranks.) But even if courts could be convinced that transgender combat troops posed sufficient difficulties for the military so as to justify a policy of exclusion, such a conclusion would fall far short of justifying the policy Trump announced. After all, Trump’s tweets did not speak of barring transgender personnel from combat; it proposed to bar transgender persons from military service “in any capacity[.]”

The U.S. military employs people in a lot of capacities. It has doctors, lawyers, chaplains, cartographers, meteorologists, journalists, diplomatic attaches, cargo pilots, engineers and cooks. And it’s hard to think of any reason why transgender individuals should be banned from all of those roles. Indeed, it’s hard even to think of any reason why a government might want to ban transgender persons from all of those roles—except, of course, for simple dislike of transgender individuals.

Two other possible motives should be briefly mentioned and just as briefly dismissed. First, Trump wrote that having transgender personnel in the military would come with “tremendous medical costs[.]” The government is surely permitted to try to save money, so if this claim were true, it would open up the possibility that the policy was motivated not by sheer animus toward transgender persons but by fiscal concerns. But there is no reason why transgender personnel need burden the military with great financial costs. Yes, the military might incur such costs if it paid the bill for the medical care associated with actual gender transition, as was the policy under Obama. But if that were the concern, the military could simply stop providing that benefit, thus saving the money without barring all transgender persons.

Second, and perhaps more cynically, such a policy might have simple political motivations. Regardless of whether the president himself bears ill will toward transgender people, his aim might be to appeal to a political base that does. But it’s well-established that one cannot escape anti-discrimination rules on the grounds that one is catering to someone else’s prejudice rather than acting on one’s own. The classic example is a restaurant that refuses to hire black waitstaff, not because the restaurant owner is a racist but because the restaurant owner thinks the customers want the waitstaff to be white. This “customer preference” argument is a known loser, and it’s no different as an argument about voters rather than customers.

There’s also another way to think about why a transgender ban would be unconstitutional. It’s settled law that government actions discriminating on the basis of gender are subject to what constitutional doctrine calls “heightened scrutiny” and in particular that they can survive only if they are “substantially related to important government interests.” In other words, it’s not enough for the government to proffer some explanation that might conceivably explain the rationality of such a law. Instead, the government has to meet a more demanding standard. Recently, the Equal Employment Opportunity Commission and the U.S. 7th Circuit Court of Appeals have ruled that this “heightened scrutiny” standard applies not just to laws that discriminate between men and women, but to laws that discriminate between gays and heterosexuals, because the gay-straight distinction is also a matter of gender. To subject laws discriminating against transgender persons to the same heightened scrutiny would take the matter one step further, but it’s an entirely foreseeable step and not an illogical one. If laws discriminating against transgender individuals are subject to heightened scrutiny, the likelihood of the government’s being able to justify a ban against not just transgender combat troops but transgender meteorologists and engineers seems remoter than remote.

But even if the courts are not ready to rule that discrimination against transgender individuals is subject to heightened scrutiny, it’s well-established that government action rooted merely in animus is unconstitutional. And that’s what we have here, as made clear by the sheer breadth of the ban.

If a policy is based in animus, it is unconstitutional regardless of whether a similar policy or even the identical policy could have been enacted for permissible reasons. What makes such a policy invalid is its purpose rather than the specifics of how it is carried out.

Presidents have, and should have, significant discretion over matters involving the military. But even the military is not a Constitution-free zone. And one of the Constitution’s minimal demands is that government not act against people for no better reason than dislike.