The President’s Discrimination Against Transgender Service Members is Unconstitutional

by Harper Jean Tobin

Image credit: Jason Arrol/NCTE

Despite calling for “unity” while announcing increased military action in Afghanistan, President Donald Trump is pressing forward with his ban on transgender service members. If the White House has its way, current service members will face an as-yet-unspecified process of being kicked out because of who they are. In the meantime, they may be denied medical care as well.

Most of us don’t begrudge military service members their medical care — it’s part of the promise the country makes to those who serve. If a medication, procedure, or therapy is prescribed by military doctors, the Department of Defense provides it without hesitation.

But the guidance reportedly circulating within the White House calls for different treatment for transgender troops, namely to “stop spending on medical treatment regimens for those currently serving,” according to the Wall Street Journal. That means that soldiers, airmen, Marines, and Coasties currently serving around the world could have prescribed medications cut off and scheduled treatments cancelled.

The White House has another problem: not only is discrimination against transgender service members hugely unpopular with voters and leading members of his own party, it flies in the face of the Constitution. That’s no less true when it comes to health care than for kicking out troops.

For one thing, numerous courts have ruled that discrimination against transgender people is subject to a tough review requiring an “exceedingly persuasive justification.” For another, courts have repeatedly ruled that a ban on medical care — specifically targeting transgender people is unconstitutional — in prisons.

Even in a high-profile case where an appeals court narrowly rejected an individual transgender prisoner’s claim for medical care, the court ruled that any blanket ban “would conflict” with the Constitution. Courts tend to provide similar leeway to prison and military officials, but health care bans are unlikely to withstand scrutiny in either context — especially under a policy announced by tweet, without apparent input from Pentagon leaders.

Photo credit: Benjamin Faust

Think about it: These are highly trained and capable service members who, in many cases, already deployed. It makes zero sense to kick them out because of who they are; and makes less sense to deny them medically-prescribed care while they serve. That’s why the American Medical Association supports transgender troops and opposes denying them health care.

Even if it were about medical costs for transgender troops, the medical costs associated with the few thousand transgender service members amount to 1/1000th of one percent of the Pentagon’s annual budget. The Palm Center estimated that removing transgender troops would cost $960 million — over 100 times the medical costs that President Trump claims to have driven his decision.

While the Wall Street Journal reported that the White House will give the Pentagon six months to implement the ban, last week Broadly reported that the Army was already cancelling prescribed and scheduled medical procedures for service members. To use the recent words of Coast Guard Commandant Adm. Paul Zukunft, that’s breaking faith with those who are serving.

President Trump’s Twitter-based trans ban is already facing legal challenges. Get ready for more.

In the meantime, sign our petition telling the President to stop his misguided effort to ban transgender people from military service.

Harper Jean Tobin is Director of Policy at NCTE.

Sign up to receive NCTE’s emails, and follow NCTE on Twitter, Facebook, and Medium for the latest news on issues affecting the transgender community. Visit transequality.org for in-depth resources and information on what you can do to support the transgender people in your life.

Trans Equality Now!

A joint project of the National Center for Transgender Equality Action Fund and the National Center for Transgender Equality. Also at ncteactionfund.org and transequality.org.

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National Center for Transgender Equality

Written by

We’re the nation’s leading social justice advocacy organization winning life-saving change for transgender people. Also at https://transequality.org.

Trans Equality Now!

A joint project of the National Center for Transgender Equality Action Fund and the National Center for Transgender Equality. Also at ncteactionfund.org and transequality.org.

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