Last month, President Trump tweeted that he did not think transgenders should be allowed in the military. A month later, he formalized that idea and in response, the ACLU has sued Trump on behalf of several transgender military people, saying his ban violates the equal protection and due process clauses of the Constitution.
While the ACLU may win their case, especially utilizing the 14th Amendment, which is often the basis of many decisions regarding discrimination, that doesn’t mean reversing the ban is also a good idea.
Per their web site, the ACLU states,
Our lawsuit argues that the ban violates the constitutional guarantees of equal protection and substantive due process by singling out transgender individuals for unequal and discriminatory treatment.
The “equal protection clause” is tricky; the ACLU may have a stronger argument with the due process clause.
Originally written with slavery and emancipation in mind, it was used again in Brown v. Board of Education as the methodology behind desegregation. But scholars, and now a court, along with the American public, must again ask these questions: What did the Framers intend by the phrase “equal protection under the law?” What exactly does it mean to treat people equally anyway? If there’s one group who hasn’t been treated equally, it’s those in the military. And for the civilians whom our military defends with their lives, that’s a good thing.
The military is a special institution, set apart from the rest of society to protect and defend this country from enemies foreign and domestic. While the Constitution certainly applies to the military — and indeed the ACLU may have a strong case against Trump in this regard — that doesn’t mean reversing the transgender ban would be a good idea for the military, or civilians.
For starters, the military has different standards of operation than civilians. A glance at this list will show the many possible reasons a person may be disqualified from service. The physical standards are so high a person can’t join the military with diabetes or even some forms of ulcers. Only recently standards for people with asthma and ADHD were adjusted — a few years ago, people with those issues could not join either. This makes sense: Would you want to receive news that your son died on the battlefield because the soldier closest to him had an asthma attack and couldn’t carry him to safety?
Take these same standards and apply them to transgender people.
On the surface, they claim to simply be men or women in the wrong body. Many desire or need “gender reassignment” or sex-change surgery to complete their transition (see Chelsea Manning). While some medical doctors agree and might posit the issue is physical or biological, advocating a transgender person is literally born in the “wrong body,” some psychologists and psychiatrists, such as Paul Mchugh, firmly believe the issue is mostly a psychological one, not biological. Decades ago, McHugh helped shut down sex-change surgeries at Johns Hopkins, as doing so was voluntarily cooperating with a mental illness. (They are now resuming the surgeries.)
Whether a transgender person is struggling with merely a biological issue, a mental illness, or a mix of both, why wouldn’t the same restrictions about serving apply to them — as it does to people with something relatively minor such as inflammatory bowel disease? If a person with an underactive thyroid who isn’t on medication can’t serve, how can someone who just believes they were born in the wrong body and wants a sex change?
That makes no logical sense. When compounded with the mission of the military — it’s not a petri dish of political experiments, but an institution whose primary goal is to protect this country — that makes Trump’s ban make even more sense.
Time will tell if the ACLU wins their lawsuit. But if they do, that will instigate dramatic changes to both the competency of our military and even more influential, allow a sloppier interpretation of the equal protection clause which will also keep the military from doing its job with the most qualified people available.
Nicole Russell is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist in Washington, D.C., who previously worked in Republican politics in Minnesota. She was the 2010 recipient of the American Spectator’s Young Journalist Award.
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