Getty Law And Order Trump’s Transgender Ban Is a Legal Land Mine The Trump administration may soon learn that singling out a class of people for exclusion violates the constitutional guarantee of equal protection under the law.

John Culhane is H. Albert Young Fellow in constitutional law and co-director of the Family Health Law & Policy Institute at Delaware Law School (Widener University). He recently visited Cuba with his colleagues as part of a course exploring the economic and political situation there.

President Donald Trump’s Wednesday announcement on Twitter that transgender men and women will not be allowed to serve in the military “in any capacity” was not a complete surprise: Last month, Defense Secretary James Mattis announced that the military was hitting the pause button on an Obama-era plan to welcome openly transgender people into the military.

But the announcement was a legal land mine. The Trump administration may soon learn that singling out a class of people for exclusion violates the constitutional guarantee of equal protection under the law. And as to those transgender soldiers already serving openly, any effort to expel them would face even more profound difficulties.


Recall that, until 2011, gay and lesbian soldiers were prohibited from serving openly in the military. When the so-called “Don’t Ask, Don’t Tell” policy was repealed, though, military policy still excluded transgender men and women from service. Then, on June 30 of last year, Defense Secretary Ash Carter announced a policy to phase in trans soldiers, which was to have been completed no later than one year later — at the end of last month.

While the military ramped up to implement rules and procedures to make that goal take place smoothly, a ban on discharging trans soldiers went into effect immediately. That means that since June 30 of last year, transgender soldiers already serving came out, while others joined the military because of the policy shift.

It’s not clear whether the intention is to dismiss those trans soldiers who have been open about their identities since they were invited to serve last year. Trump’s tweet says, cryptically, that trans people can’t serve “in any capacity.” But discharging them after they’ve been told they have the right to serve would create serious problems of reliance.

Reliance is a legal term defined as acting on another’s promise or claim. As a general matter, you can’t induce someone to behave in a certain way, and then impose negative consequences when they do so. Courts have long invoked principles of basic equity to prevent unfairness in different situations. A person relocates based on a job offer, and incurs moving expenses and loss of his current job. A woman promises to give a man $10,000 to buy a car, and the man makes the purchase based on that promise. If the promisor then reneges on the commitment, courts will make them pay for the injured party’s loss. That is, as long as the reliance on the promise is reasonable—meaning that someone in the position of the promisee could have been expected to act on the promise.

Applied to this case, discharging someone currently serving as an openly trans person in the military—in other words, someone who came out or joined because of the military’s new policy—would create a serious reliance issue. If trans people are discharged, lawsuits will follow. Even if they aren’t, we can expect attorneys to seek a declaration from courts that no such discharges would be legal.

But how to resolve the problem can be complicated. Courts try to limit the remedy to whatever is necessary to avoid unfairness—the cost of relocation, for instance, in the first case above (assuming the person could find another job). In this case, the courts might not allow those who have already come out to be discharged, but could well countenance the reinstatement of a de facto “don’t ask, don’t tell” policy for those who have not yet been open about their transgender status.

As to those transgender men and women seeking to join the military in the future, the administration is likely to face a serious, and quite likely successful, constitutional challenge. The issues will revolve around the justifications for the new policy, and the level of protection that courts—and especially the Supreme Court—might be willing to afford to the trans community.

Generally speaking, laws need only to have a rational basis for courts to uphold them. Otherwise, every piece of legislation would be subject to second-guessing about what might have been a better policy. So owners of bars can’t win a challenge to a legally mandated 2 a.m. closing law by saying it hurts their business—it might, but that’s a matter to be taken up with lawmakers, not the courts. A city defending the law would just have to show some reason—like neighborhood peace and quiet—for the measure, and courts don’t look too hard at the evidence.

But when a law targets a vulnerable group for adverse treatment, the Supreme Court uses a more searching level of review. Distinctions based on race, religion and gender, for instance, are considered “suspect,” and will be upheld only if there’s a strong justification. The legislature doesn’t get the usual level of deference.

When it comes to the trans community, it’s unclear what standard of review the Supreme Court would apply. But there are strong hints from the court itself, and from lower federal courts, that the group is entitled to protection, meaning that a strong justification would be needed to exclude them. It’s hard to see that justification here. Many foreign militaries allow transgender people to serve. Even if the military were to pay for gender-affirmation surgery, the costs are low—on the order of one-tenth of one percent of health care costs, according to a study by the Rand Corporation. And, as was the case with allowing gay men and lesbians to serve, “unit cohesion” will be furthered, not weakened, by permitting people to serve openly—as long as the military commits itself to proper training and protocols.

Whatever reasons the administration would ultimately put forth would be weighed against the harm to the people affected, and the Supreme Court’s jurisprudence suggests a willingness to take those harms seriously. In the 1996 case Romer v. Evans, the Supreme Court declared that laws justified by nothing other than anti-gay animus are “obnoxious” to the constitutional guarantee of equal protection under the law. In the more recent 2013 case of United States v. Windsor, the court’s conclusion that the Defense of Marriage Act was the product of anti-gay and -lesbian animus spelled the law’s doom. Although the Supreme Court has never explicitly applied a strict standard of review to cases involving sexual orientation, it’s clear that the court is doing so, in practice.

If the military transgender ban is not supported by logic or facts, a similar outcome is quite likely here—but not a sure bet, since the Supreme Court has made no such pronouncements when it comes to the transgender community. So far, the “T” in LGBT has mostly been silent. Lower courts, though, have increasingly seen anti-trans discrimination as a form of sex discrimination. If the Supreme Court agrees that the main issue here is gender, that would be another way to get to a form of more searching review of the military transgender ban. Courts almost never find sex discrimination justified.

All of this is speculative, of course, because the Supreme Court justices can do what they want, especially since there is no direct precedent. Neil Gorsuch, in a case involving whether the state of Arkansas had to put the names of both spouses in same-sex marriage on the birth certificate, has revealed himself to be unsympathetic to the LGBT community and firmly lined up with the court’s conservative flank. So it’s likely there are four votes on either side of this case, with Justice Anthony Kennedy, as usual, sitting at the court’s fulcrum. Who knows how long he’ll be there, and who his replacement might be?

Ultimately, though, the Supreme Court is likely to see today’s policy decision as animus in the form of dismissal of an entire community. While it’s unrealistic to think that the policy will be overturned by either the president or Congress during the current administration, the court should be able to see through today’s about-face to the discrimination underlying it.