Trump’s trans military ban isn’t constitutional. But that’s not the point.

Donald Trump James Mattis
President Donald J. Trump departs from the Pentagon alongside Secretary of Defense James Mattis on Jan. 27, 2017, in Washington, D.C. Photo: DOD photo by U.S. Air Force Staff Sgt. Jette Carr

Late on Friday night, March 23, the Trump administration unveiled its latest transgender military ban, following recommendations from Defense Secretary James Mattis.

Calling it “new” is generous, as it is more of the same, a last ditch effort among many last ditch efforts to force the ban through despite four federal courts slapping it down.

Even saying the new ban comes after recommendations handed down from Mattis is questionable. Reports have stated the recommendations were really the work of Vice President Mike Pence, working alongside anti-LGBTQ activists Tony Perkins of the Family Research Council and Ryan Anderson of the Heritage Foundation.

Related: Top DOJ civil rights lawyer quits to fight the Trump administration over LGBTQ rights

The new policy is a transparent attempt to kick the can down the road, a response to U.S. District Judge Marvin Garbis, who is hearing one of the challenges to the ban, asking the administration to hand over information relevant to the case.

The White House said it couldn’t since a new policy would be unveiled, meaning the administration need not defend its old ban.

The problem is, the new ban isn’t any more constitutionally sound than the other, still presenting the same problem of discrimination against a class of people with no legitimate basis.

The “new” ban is based on the claim that transgender soldiers would decrease military effectiveness, as a result of gender dysphoria (the feeling of one’s body and gender identity not matching).

There is, unfortunately, no other socially and scientifically accepted or understood term for this phenomenon, and it is all too often widely misunderstood to mean that everyone with gender dysphoria is suffering from a mental health condition that cannot be ameliorated by transitioning.

The fact of the matter, as many studies have shown, and against the claims in the recommendations from the Trump administration, is that for most trans people, their quality of life improves dramatically.

The Pence report also tries to undermine the RAND study, commissioned by the armed services. It analyzed the effects of allowing transgender soldiers to openly serve in Australia, Canada, Israel, and the United Kingdom, and found that in each case there was no impact on readiness or unit cohesion, and allowing trans soldiers to serve openly did not bring about any undue costs.

The report claims allowing transgender soldiers to serve openly “could undermine readiness, disrupt unit cohesion, and impose an unreasonable burden on the military that is not conducive to military effectiveness and lethality.”

“The prior administration largely based its policy on a study prepared by the RAND National Defense Research Institute; however, that study contained significant shortcomings. It referred to limited and heavily caveated data to support its conclusions, glossed over the impacts of healthcare costs, readiness, and unit cohesion, and erroneously relied on the selective experiences of foreign militaries with different operational requirements than our own. In short, this policy issue has proven more complex than the prior administration or RAND assumed. In fact, the study also looked at transgender soldiers already serving in the U.S. armed forces, although those numbers were hard to ascertain,” the memo stated.

In fact, it used all available data, noting the difficulty inherent in analyzing a population that has been forced to go underground due to discriminatory practices that disallowed trans soldiers to serve openly in this country’s armed services until after the study was conducted.

Even still, it estimated the number of transgender soldiers currently serving in the U.S. armed services – a fraction of a percentage – and did assess the likely “impact on unit cohesion, operational effectiveness, or readiness,” finding it to be little to none.

“Commanders noted that the policies had benefits for all service members by creating a more inclusive and diverse force,” it noted.

“Policy changes to open more roles to women and to allow gay and lesbian personnel to serve openly in the U.S. military have similarly had no significant effect on unit cohesion, operational effectiveness, or readiness,” it also found.

The Trump administration’s memo regarding the latest transgender ban conveniently ignored that particular finding, while accusing the RAND study of being selective.

It’s a classic Trump administration move: blame the opposition for doing what you yourself are in fact up to.

While the ban appears to be a losing battle for the administration, it will still get its way in the short term.

As the legal challenge winds its way through the court system, countless transgender people will stay closeted or avoid enlisting.

Lambda Legal, which has been challenging the ban in court, noted in a statement that now “transgender people serving in or seeking to join the military must live under a dark cloud of harmful uncertainty.”

Related: Remembering the transgender people lost in 2018

“Although at least one openly transgender person has decided to enlist in the military under the protections of the preliminary injunctions, many others have decided to wait for the litigation to proceed because they have a reasonable concern that the rug will be pulled out from under them once they have enlisted,” wrote Lambda Legal Staff Attorney Sasha Buchert. “This ‘chilling effect’ means that many transgender people who would otherwise join the military are effectively denied the privileges that come with military service as they wait indefinitely for finality in the courts.”

“Openly serving transgender service members are also currently forced to cope with concerns about their livelihood; whether they will be able to support themselves and their families in the future and whether they will soon lose health care for themselves and their children if they are purged out of the military,” Buchert added. “This ban has placed a badge of inferiority on transgender service members. It stigmatizes them as less capable of serving in the military and reduces their stature among their peers.”

“Many others are forced to hide their identity because they reasonably fear that if they come out to their command and there is an adverse court ruling, they too will be summarily dismissed from their jobs.”

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