President Trump used Twitter to announce on July 26 that “the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military.” U. S. District Court Judge Colleen Kollar-Kotelly, appointed to the federal bench by then-President Clinton, has now substituted her own judgment about how to run the military for that of our nation’s elected Commander-in-Chief.
Judge Kollar-Kotelly issued a preliminary injunction on October 30 to prohibit President Trump and the Defense Department from giving effect to his August 25 Presidential Memorandum implementing the policy announced earlier. The Trump memorandum overturned a year-old Obama administration decision opening the military to those who identify as transgender.
The judge’s injunction is preliminary—and it also seems premature. Under the terms of the Trump memorandum, service members who “came out” as transgender after the Obama policy took effect on July 1, 2016, are continuing to serve openly. They will do so until at least March 23, 2018, while the Pentagon studies and prepares recommendations on “how to address transgender individuals currently serving.”
Meanwhile, no one who identifies as transgender has yet been recruited into the military. A July 1, 2017, date for beginning that part of the Obama policy had already been postponed for six months by Defense Secretary James Mattis before the Trump announcement. Presidential tweets notwithstanding, the July 2016 status quo remains currently in place.
Although the injunction is preliminary, in order to issue it Judge Kollar-Kotelly had to also find that the “Plaintiffs are likely to succeed” on the merits. It is in this section of her opinion (a mere 14 pages out of 76) that she most clearly reveals both her bias and her blindness to the real issues involved.
Judge Kollar-Kotelly focused much on “rights” in the context of military service. Yet military service itself is not a “right,” like the right to vote or the right to free speech—it is always a privilege, and one which is entirely contingent upon the needs of the military. And despite paying lip service to her judicial duty to defer to executive branch judgments in the areas of national security and military policy, she all but flat-out ignored it.
Judge Kollar-Kotelly also referred to transgender individuals as “a discrete group,” a “discernable class” and a “subset of society,” and suggested that only “animus” or a “desire to harm a politically unpopular group” could explain treating them differently from other existing or potential service members. Actually, the Supreme Court has never declared that classifications based on “gender identity” are subject to “heightened scrutiny,” nor that they are equivalent to classifications based on “sex.” Yet Kollar-Kotelly’s opinion relies on both of these legal theories.
Judge Kollar-Kotelly notes, but then fails to respond to, the actual reasons why those who identify as transgender had always been excluded from military service until a scant sixteen months ago—namely, their physical and mental health. For decades, a long list of physical conditions that disqualify someone for military service has included “defects of the genitalia including but not limited to change of sex,” and the list of disqualifying mental health conditions has included “[c]urrent or history of psychosexual conditions, including but not limited to transsexualism, . . . transvestism, . . . and other paraphilias.” Neither the Obama administration nor this judge has offered any explanation—based on peer-reviewed scientific literature rather than mere social trends—why these concerns no longer apply.
While courts should largely defer to the executive branch in making military personnel policies, it is true that service members do not forfeit all constitutional rights. Judge Kollar-Kotelly ruled that President Trump reinstating a transgender exclusion policy was a violation of the “equal protection component” of the Fifth Amendment’s “Due Process” clause. However, the constitutional principle of “equal protection” does not require that every individual be treated identically to everyone else all the time –ignoring all physical limitations and health conditions. This could lead to absurd results, such as severely disabled individuals being assigned to demanding combat roles. Instead, according to the Supreme Court, it means that “all persons similarly situated should be treated alike” (emphasis added).
Those who identify as transgender are simply not “similarly situated” to other active or potential service members. Specifically:
- Persons who suffer from the mental disorder known as “gender dysphoria” are not similarly situated with other persons who suffer no such disorder. For example, those who identify as transgender suffer from far higher rates of suicide even after being given gender reassignment surgery.
- Persons who require ongoing cross-sex hormones are not similarly situated (particularly with respect to worldwide deployability) to persons who do not require such specialized medical care.
- Persons who have undergone gender reassignment surgery are not similarly situated to persons whose genitalia have not been so altered. Ironically, the Obama policy would “discriminate” in favor of transgender service members, when compared to intersex individuals who have undergone similar genital surgery.
The Trump administration should appeal the preliminary injunction, and continue to vigorously defend the merits of its common-sense transgender military policy.
Lt. Gen. (Ret.) William G. “Jerry” Boykin serves as Family Research Council’s executive vice president. He spent 36 years in the Army, serving his last four years as deputy undersecretary for intelligence in the Department of Defense.