Why Trump’s Ban on Transgender Servicepeople Is Flatly Unconstitutional

Here’s another Trump policy likely to get held up in courts.

a wall-to-wall ban on transgender Americans in the armed forces could only be understood as rooted in what constitutional doctrine calls animus: that is, the bare dislike of a group of people. And as the Supreme Court has held in cases going back at least to the 1970s, animus is never a constitutionally valid reason for government action.

.. The Israeli military, which is not known for compromising its fighting effectiveness out of deference to softheaded social causes, includes transgender individuals in its ranks.

.. Trump’s tweets did not speak of barring transgender personnel from combat; it proposed to bar transgender persons from military service “in any capacity[.]”

.. The U.S. military employs people in a lot of capacities. It has doctors, lawyers, chaplains, cartographers, meteorologists, journalists, diplomatic attaches, cargo pilots, engineers and cooks. And it’s hard to think of any reason why transgender individuals should be banned from all of those roles. Indeed, it’s hard even to think of any reason why a government might want to ban transgender persons from all of those roles—except, of course, for simple dislike of transgender individuals.

.. Yes, the military might incur such costs if it paid the bill for the medical care associated with actual gender transition, as was the policy under Obama. But if that were the concern, the military could simply stop providing that benefit, thus saving the money without barring all transgender persons.

.. Regardless of whether the president himself bears ill will toward transgender people, his aim might be to appeal to a political base that does. But it’s well-established that one cannot escape anti-discrimination rules on the grounds that one is catering to someone else’s prejudice rather than acting on one’s own.

The classic example is a restaurant that refuses to hire black waitstaff, not because the restaurant owner is a racist but because the restaurant owner thinks the customers want the waitstaff to be white. This “customer preference” argument is a known loser, and it’s no different as an argument about voters rather than customers.

.. government actions discriminating on the basis of gender are subject to what constitutional doctrine calls “heightened scrutiny” and in particular that they can survive only if they are “substantially related to important government interests.”

.. If a policy is based in animus, it is unconstitutional regardless of whether a similar policy or even the identical policy could have been enacted for permissible reasons. What makes such a policy invalid is its purpose rather than the specifics of how it is carried out.