Federal Policy Changes Under Trump

Shortly after commencing his second term, President Donald Trump directed the military to implement a ban on transgender individuals serving in the armed forces. This decision was supported by a Defense Department policy scheduled to take effect on March 26, which would initiate the dismissal of transgender service members. However, a court order intervened, preventing these firings.

The Court Case: United States v. Shilling

The ongoing court case, known as United States v. Shilling, has now ascended to the Supreme Court. The Trump administration’s central defense is that the policy does not outright ban transgender individuals, but rather targets those diagnosed with gender dysphoria. Legal experts criticize this argument as unfounded, pointing to the Court’s history of dismissing similar claims.

Gender dysphoria is defined by the American Psychiatric Association as “psychological distress stemming from a misalignment between one’s sex assigned at birth and one’s gender identity,” a condition frequently faced by transgender individuals. Analogies are drawn to other forms of discrimination, emphasizing that the recharacterization of a ban based on gender identity does not alter its discriminatory nature.

Implications of Military Deference

The Court traditionally exhibits substantial deference to military decisions, which raises the likelihood of the Trump administration prevailing in this case. This deference has historically allowed the military to enact policies that would be deemed unconstitutional in civilian contexts.

“A tax on wearing yarmulkes is a tax on Jews,” as stated in Bray v. Alexandria Women’s Health Clinic (1993), illustrates that discriminatory measures cannot simply be redefined to evade constitutional scrutiny.

Historical Context and Supreme Court Precedents

Previous decisions involving the military reflect its unique status. For example, in the case of Goldman v. Weinberger (1986), the Court upheld a military ban on Jewish service members wearing yarmulkes, arguing that military regulations demand a higher level of compliance and unity than civilian law might require. This principle was similarly applied in cases involving sex discrimination, such as in Rostker v. Goldberg (1981), where the Court justified gender-based drafting laws.

Legal scholars argue that given these precedents, the challenges faced by plaintiffs opposing the transgender service ban are significant, particularly in light of the current Supreme Court’s conservative leanings.

Potential Consequences of the Ban

Judge Benjamin Settle, who initially blocked Trump’s second-term ban, remarked on its potential detrimental effects on military effectiveness. The lead plaintiff in the Shilling case, Commander Emily Shilling, represents a seasoned military pilot who has invested 19 years of service and participated in multiple combat missions. The Navy reportedly spent $20 million on her training, which underscores the substantial loss of expertise and capabilities if the ban is reinstated.

Ultimately, while constitutional protections may appear to safeguard against discrimination, the military’s unique position allows it considerable leeway in matters regarding personnel policy, a fact that complicates the fight against the transgender service ban.