• Daniel Ethan Finneran

Transgender Ban: Sine Die

September 2017

Nearly one month after President Trump’s ambiguous and perfunctory ban of transgender men and women from the military (which he announced without further elaboration on Twitter), the White House has provided an update on his decree. We still know not when, nor even if, it will ultimately be put on the books and codified into law, but at least for now it’s become a renewed topic of consideration. Most likely, the ban will be enforced. Until it becomes so officially, transgender men and women attempting to join the military will be barred. They’ll be proscribed from enlisting and fighting and defending our nation overseas.

In its essence, this ban will be a return to the status quo ante, whereby transgender or transitioning civilians were denied open enlistment in every branch of the armed forces. This was the accepted position before 2016 and henceforth, so shall it be. It wasn’t until President Obama’s final year in office, when the topic of transgender rights had evolved into the socially, culturally, and politically combustible issue that it is today, that in the military, the controversy was addressed. Secretary of Defense Ash Carter, in the last leg of Obama’s tenure, announced that transgender individuals would be allowed to serve openly in the American military. They could do so for the first time without fear of repercussion, ostracism, humiliation, or persecution.

By many Democrats, Republicans, Independents, and Libertarians—so long as they shared in being socially liberal—this measure was seen as a great success. It was seen optimistically as a step forward. At the time, Carter summed up the move best by highlighting its moral propriety as well as—on a note more relevant to the armed forces that he oversaw at the time—its efficacy. He called it “the right thing to do for our people and for the force”. He went on to say that the military “can’t allow barriers unrelated to a person’s qualifications to prevent us from recruiting and retaining those who can best accomplish the mission”. The martial spirit is indiscriminate and Obama and Carter indented to find it wherever it might hide.

Even if it’s to be found in a transgender American citizen. But problems can and potentially do arise when in these citizens that spirit is found. Many questions regarding the integration of transgender troops into a historically cis-gender association have been raised. Requiring answers, those questions are just beginning to be explored. This is precisely what General James Mattis is bent on doing. Mattis, who now succeeds Carter as Secretary of Defense, is in the process of analyzing, as objectively as possible, the influence of transgender troops on things like battlefield cohesion, combat readiness, physical endurance, and an arduous inclination toward war.

Mattis hasn’t yet released the findings of his analysis, but when he does, they’re likely to be reverberative, telling, and demonstrative of this White House’s bias. They’re likely to inform exactly how and for what legitimate reasons this administration is to pursue its agenda on proscribing transgender people from joining the military. And likely, they would have credibly done these things, had not President Trump jumped the gun.

Before Mattis had the chance to complete this philosophically broad and sociologically demanding analysis, the President announced his ban. That said, it won’t become fully implemented until Mattis and the Departments of Homeland Security and Defense publish their findings. At this point, though, the data will be nothing more than superfluous, as the decision seems already to have been made. It’s just a matter of putting it into place, but when exactly that will be is unclear. The transgender troops will simply have to wait to learn their collective and imperiled fait sine die.

Up till and including now, the president’s proposed ban hasn’t been received favorably by the public. A majority believes that transgender servicemen ought to be able to serve in the military with every cis-gender privilege and right. On this, socially progressive Americans on either side of the aisle tend to agree. Thus has spawned the lawsuit being currently heard in federal court. On Monday, the American Civil Liberties Union (ACLU) filed a lawsuit, Stone v. Trump in a district court in Maryland. The plaintiff, Petty Naval Officer Brock Stone, who is himself a transgender serviceman with eleven years of military service, lends his name to what might prove in time to be a memorable case. Along with Stone, four other transgender servicemen and one servicewoman are also involved as plaintiffs in the case. The ACLU organized this case immediately after the president’s original tweet.

Two additional, independent suits are also being charged against President Trump and his military commanders. The National Center for Lesbian Rights and the GLBTQ Legal Advocates and Defenders have teamed up with hopes of vitiating Trump’s proposed ban, as have Lambda Legal and OutServe-SLDN—both of which represent many clients in civil rights cases.

The ACLU, in its scathing thirty-nine-page lawsuit, is alleging the administration of having violated the “constitutional guarantees of equal protection and substantive due process” enumerated in the Fourteenth and Fifth Amendments. It goes on to claim that in 2016, the Pentagon effectively concluded—in no small part because of the commissioned RAND Corporation’s analysis and findings—that there was “no basis for the military to exclude (transgender) men and women from openly serving their country”. The ACLU lawyers are further contending that Trump’s “actual motivations (for banning transgender servicemen) are purely political” and that these motivations “reflect a desire to accommodate legislators and advisers who bear animus and moral disapproval toward men and women who are transgender”.

Exactly how far these lawsuits go will be have to be seen in time. One needn’t look far, though, to see in a glimpse the developing struggle festering in this situation. The president is, at the end of the day, the Commander-in-Chief of the military. It is his ex officio right to determine precisely how the armed forces are organized and run. This is up to his better judgment or his caprice. Regardless of the fact that he hasn’t even a paucity of knowledge when it comes to military science and the art of war, he is the ultimate military authority to whom all American generals must turn; not to do so would be subservient, mutinous, and reasonably tantamount to treason. The case for civil rights might be strong, but the case for military hierarchy might be stronger.

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