Why have LGBT orgs filed 3 lawsuits over the trans military ban? What’s the difference?

Why have LGBT orgs filed 3 lawsuits over the trans military ban? What’s the difference?
Photo: Shutterstock
Much has been written recently about the transgender military ban. It prevents our brave trans service members from continuing to serve. It bars others from enlisting. Regardless of how one may feel about war and peace, if there is to be a military, saying that transgender people aren’t fit to serve is tantamount to saying we are second-class citizens.

There have been many dialogues on the issues of military fitness, medical needs, fighting readiness and cost. There has been much consideration of what this means for us as a country, for transgender people as a community, and for the LGBT rights movement. There has, however, been little discussion of what, exactly, the Constitution forbids. What is so legally wrong about the trans military ban?

It’s unfair, yes, but the law has never been about fairness alone. It’s a set of rules, sometimes fair, sometimes arbitrary, sometimes set by corporate lobbyists who want to make money, and sometimes pushed by social justice advocates who are well-meaning but working from flawed data. It’s important to understand there are deep and abiding principles of American law, enshrined in the U.S. Constitution by political theorists trying to make a new kind of government for and by the people, that the trans military ban violates.


There are now three separate federal lawsuits now pending against the government to overturn the trans military ban. These have been brought by NCLR and GLAD, Lambda Legal, and the ACLU. Why are there three? Firstly, you may view these organizations as The Movement, but each has its own culture and orientation and viewpoint of how best to win this. Sometimes they don’t agree, and sometimes they want to make their own splash. Each suit makes slightly different arguments. Each is brought in federal courts in different states (Washington State, D.C. and Maryland).

Are We Equal Yet?

Most people in our community now know what equal protection means. It figures prominently in marriage equality. It is the principle that the government may not deny to any person the equal protection of the laws. That means the rights conferred on all others must be conferred on us too. Making a law that denies to transgender service members the right to serve our country through military service — while allowing cisgender service members the right by law to do so – that is, obviously, not applying the law the same to those trans service members as to cisgender service members.

Less well known, but perhaps even more important, is the principle of due process. It is the principle that the government may not deprive any person of life, liberty, or property, without due process of law. What are the legal processes the government owes us? “Due process” is not merely ensuring that there are procedures of some sort. “Liberty” is not limited to freedom from prison. It extends to the full range of conduct which the individual is free to pursue, such as serving our country in the military.

This “due process” principle ensures that those procedures must be fair. They must be consistent with other constitutional rights. One of those is the right to be free of government interference in making private and personal life choices, often shortened to the right to privacy.

The right to privacy is often misunderstood as the right to do what you want behind closed doors. It is not. There are lots of things illegal to do even behind closed doors.

Rather, it is the right to determine what your personal and family life looks like, without the government telling you that you should not have sex, or certain kinds of sex, or telling you to have children, or taking away your means of choosing whether to have children, or denying the right to marry another person. (There are limits to the right to privacy, but I’ll discuss those another time.)

I’ve argued that the due process principle includes your right to determine your gender identity and expression free from government interference. (See some examples here and here.)

If so, telling trans service members that they can only serve in the military if they hide their gender identity violates the due process of law.


How Equal Is Equal?

Neither the principle of equal protection nor that of due process are unlimited. They do not automatically invalidate a law that infringes on them a little bit. As long as there is a good reason, applying the law differently to a single group does not automatically mean the law is unconstitutional.

For example, the law may require a prescription in order for an optician or optometrist to fit glasses. That disadvantages opticians, who receive less training and are unable to write a prescription for glasses. Opticians will object, of course, that a prescription isn’t really necessary to determine the strength of glasses needed. It is a good enough reason, however, that requiring prescriptions would encourage more frequent eye examinations, enabling earlier detection of serious eye conditions.

Of course, and I am sure those among you who are opticians will agree in the comments section, this is completely unfair to opticians and of dubious benefit. Consumers who have seen the price of glasses recently will likely also agree. Nonetheless, the U.S. Supreme Court said this was a good enough reason, and so it is. The Court has said that it will give a pass to pretty much any reason, if it supports any legitimate government goal, and the reason given is rationally related to achieving the goal.

Suspicious, Ain’t Ya?

There are certain classifications, however, that are more suspect than that of optician/optometrist. For example, the U.S. Supreme Court has been very suspicious of laws disadvantaging people because of “good reasons” related to race and sex and certain other characteristics.

You can’t have a law banning people from going to public schools because of their race or sex. You can’t have a law requiring people to go to different public schools based on race. (Showing the slipperiness of this concept, however, the law does allow single-sex public education in some situations.)

The courts will also get suspicious if a law interferes with one’s right to privacy. That is, if the law interferes with certain personal and private life choices, the courts will scrutinize the effects of the law to see if it passes constitutional muster.

In such cases, the courts will ask three questions.

  1. How compelling is the government goal?
  2. Is the law narrowly designed to achieve that goal?
  3. Is the law more restrictive of people’s rights than necessary to achieve that goal?

There are other formulations of these questions, and the lawyers among us will tut-tut at my omissions here, but we’re not getting into the weeds. In a nutshell, do we really, really need this law, or is this just to make people’s lives difficult?

So what is the goal here? Three major goals have been advanced, and these fall into the areas of military fighting readiness, unit cohesion, and cost savings. These are generally considered legitimate goals, and the first two are quite compelling. But is the law substantially related to achieving those goals?

The military undertook a year long study starting in 2015, finding that integration of transgender troops would not impair military fighting readiness or add much cost. In fact, a Palm Center study suggests that booting out all the trans soldiers will cost an extra $960 million, and degrade military readiness because of having to kick out highly qualified and trained soldiers.

The lawyers challenging the transgender military ban will point to these and other items of evidence, arguing that the goals of fighting readiness, unit cohesion and cost savings are not very well served by banning transgender troops. In fact, they already have, as you can see starting on page 17 of the NCLR/GLAD brief asking the United States District Court for the District of Columbia for a preliminary injunction to put the kibosh on the trans ban.

So what have we learned? The United States Constitution commits our government to provide equal protection of the laws to all.

If a law discriminates against a specific group that deserves protection, the courts will ask whether we really need this law, or if it is just to make people’s lives difficult. If a law interferes with a person’s right to privacy in certain important life choices, courts will investigate whether that law is really needed, or whether it is simply to make people’s lives difficult.

The three lawsuits filed against the transgender military ban say that it doesn’t make any sense in terms of military readiness or cost. It is really designed to make life more difficult for trans people. As a result, the trans ban violates our U.S. Constitution.

Jane Lynch will guest star in the ‘Will & Grace’ revival

Previous article

School investigating bus driver for telling students ‘faggots will burn in Hell’

Next article