Bilerico Report

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

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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.

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