The US Supreme Court, in a 5-4 ruling, has allowed President Trump’s policy restricting transgender people from joining the military. The judges commonly classified as conservative -Chief Justice Roberts and Justices Thomas, Alito, Gorusch, and Kavanaugh- all gave a positive ruling. Meanwhile, the other four liberal judges -Ginsburg, Sotomayor, Breyer, and Kagan- dissented from the policy. The policy was previously announced in 2017 and effectively it aims to no longer ‘accept or allow’ Americans who identify as transgender to serve in the military, citing the ‘large medical costs and disruption’. The Obama administration had allowed transgender people to serve since 2016. Secretary of Defense, Jim Mattis, had suggested a modified policy which would only ban transgender people who seek or have undergone gender transition or experience gender dysphoria. When asking the court to review the policy, Mr Mattis and other military leaders said that Obama’s former policy ‘posed too great a risk to military effectiveness and lethality’.
While the court’s order is not a mandate, it does allow the military to enforce the ban. Legal challenges to the policy arose in 2017, when civil liberties, gay and transgender rights groups launched lawsuits against the Trump administration. One American Civil Liberties Union lawyer described the new transgender ban as ‘transphobia masquerading as policy’. This sedition was further compounded by federal courts refusing to endorse the original policy, even going as far as to institute various injunctions forcing the military to admit transgender troops. The lower courts cited the fact that the ban likely contradicted the Constitution which guarantees equal protection under the law. Mr Mattis’s revised policy faces similar legal hurdle, as it was merely seen as an attempt to implement the possibly illegal ban. However, this deadlock started to subside when a federal court in Washington DC composed of three judges reversed the ban saying that it was not a ‘blanket ban’. They also advised deferring to the executive. This went on to the Supreme Court which resulted in the policy succeeding.
The Supreme Court’s ruling did not expound on its reasoning as to why it was approving the ban. However, the continued inaction of the Supreme Court towards the lower court’s dissent has attracted some criticism from the administration. Attorney General Jeff Sessions derided the courts for ‘encroaching’ on the executive branch. Following this, the Justice Department has reacted by urging the Supreme Court to intervene in this and other disputes. Some have in turn warned against this type of action. The Supreme Court is not a court of first instance. Any legal challenge must go through proper channels and trying to circumvent the hierarchy of courts is hazardous.
On a final note, others have disputed the ban’s effectiveness. According to some estimates done by the RAND Corporation, the medical costs for caring for transgender people would be between $2.4 million and $8.4 million. However, the Palm Center conducted a similar study in 2017 and estimated it would only be $2.2 million. A study under the Obama administration also found that the costs would be marginal. As for the ‘disruption’, the RAND Corporation also estimated that between 2,500 and 7,000 troops in the US military are transgender, the removal of which will likely engender some discomfort. The effects of enacting this policy were unfortunately not considered by the Supreme Court. Instead, they chose an expeditious ruling. Typically, a court is supposed to be more deliberate, but this type of action does not bode well for the future.
By Daniel Forde – Law Editor
