If President Trump’s Tweets Become Military Policy, the ACLU Will See Him in Court

POST BY Jay Kaplan Nancy Katz & Margo Dichtelmiller LGBT Legal Project Staff Attorney

Some days, I hardly recognize my government and the way it is supposed to comport to the principles of democracy and constitutional fairness. This week we had the Senate majority doggedly pushing for a repeal of the Affordable Care Act, supported by less than 15 percent of American public, which could leave up to 26 million Americans uninsured.  Few in the Senate know what they are voting on because the various drafts of the legislation are cooked up behind closed doors, with no hearings, no opportunity for public comment, and little debate.

And on Wednesday our President, through his morning tweets, announced that transgender persons can longer serve in our military in any capacity.  While it’s highly questionable that a tweet can constitute a change in military policy, what Trump is seeking to do is to reverse the Obama Administration’s 2016 Defense Department Directive, permitting transgender people to openly serve in the military, as well as to be able to enlist. Trump’s rationale for this reversal is his assertion that having transgender personnel serve would result  in “tremendous medical costs and disruption.”

But this assertion belies reality.  Up to 15,000 transgender people already serve, and serve honorably, in the armed forces.  An independent study commissioned by the Rand Corporation last year found that allowing transgender soldiers to serve openly would have a “minimal impact” on troop readiness.  Health care costs for “transitional care” would mean between $2.4 million and $8.4 million in additional costs, less than one-tenth of one percent of the military’s overall budget.  Around the world, 18 countries allow transgender troops to serve openly and none have reported experiencing ill effects or disruption.

No, it appears that the President’s decision, made without significant input from the Defense Department, was based on politics.  According to a report in Politico, the action was in response to appeals from some members of Congress who were concerned that funding for the President’s proposed border wall in Mexico (contained in the defense appropriations bill) would be blocked unless the President threw some “red meat” to conservatives opposed to the military providing medical care to transgender soldiers.

And so due to both political calculations that are both crass and cynical, thousands of patriotic transgender military personnel, now serving their country, including in war zones, find their careers and lives in limbo. Despite their sacrifice, they have been targeted for discriminatory treatment by a President who regards them as expendible for his own short term gains. Our Constitution guarantees equal protection for all Americans, regardless of their gender identity and gender expression.  If President Trump’s tweets become military policy, the ACLU will see him in court. Again.