May 7, 2018

By Charles Sumpter, Safe Space NOVA Board Member

In case you missed it, a U.S. Judge in Seattle ordered President Donald Trump not to ban transgender service members from serving in the military, highlighting the potential unconstitutionality of such a move.

On March 23, President Trump once again released a memorandum, allowing the Department of Defense to implement a policy that would not allow transgender people from serving under a number of cases.

“Because transgender people have long been subjected to systemic oppression and forced to live in silence, they are a protected class,” U.S. District Judge Marsha Pechman said last week. “Therefore, any attempt to exclude them from military service will be looked at with the highest level of care.” Furthermore, Judge Pechman made it clear that it would be the government’s responsibility to show that the ban “was sincerely motivated by compelling interests, rather than by prejudice or stereotype, and that it narrowly tailored to achieve those interests.”

Quite honestly, Judge Pechman’s read of recent events in this area is spot on. This effort by the administration is dripping in prejudice and stereotype in that transgender individuals are somehow incapable of serving their country in uniform. This sentiment not only dishonors those that have bravely volunteered to serve, but dishonors the progress we have made as a nation.

The memorandum goes on to state that transgender people who have been diagnosed with gender dysphoria or have a history the condition would be banned, with some exceptions. Those who can show they have been stable for 36 months would be able to serve if they adhere to the standards of their “biological sex.” Under the judge’s ruling, that policy couldn’t take effect.

Some experts have stated that the ban is completely unconstitutional and that the federal courts are not going to allow this. Several federal judges, including U.S. District Judge Colleen Kollar-Kotelly, have found that the transgender troops ban constitutes sex-based discrimination and discrimination on the basis of a “suspect classification.” Under the Fifth Amendment’s equal protection component, such discrimination triggers “intermediate scrutiny” and requires an “exceedingly persuasive justification.” This justification cannot rely upon prejudices, stereotypes, or unsupported assumptions—yet that is all the administration uses to defend its ban and the American people and the courts must be able to see though this. This ban flies in the face of those willing to serve their county, whether they be transgender, gay, straight, black or white.