The Trans Military Ban Is Just The Beginning

Written By Leeja Miller

Sources:

Transcript:

Hi you’re tuned in to Why, America? I’m Leeja Miller, let’s get started. On Tuesday the Supreme Court, in a cowardly unsigned order giving zero explanation, ruled that Trump’s ban on trans people in the military can go into effect, at least for now. This is the latest in the administration’s ongoing campaign of fear and intimidation against trans people, from children to military vets and everyone in between. A tiny marginalized group of people just trying to fucking live is being systematically targeted by a hateful regime that doesn’t even feel the necessity to cloak its bigotry in the kind of pretext that characterized the first Trump administration. And yet the Supreme Court seems poised to take Trump’s side. Let’s talk about how the court got there and what that means going forward.

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Let’s start with the orders. On his first day in office, Trump issued an executive order revoking a Biden-era order that allowed trans members of the military to serve openly. A week later, on January 27, he issued an order titled Prioritizing Military Excellence and Readiness. The order says that in order for the military to be the world's most lethal fighting force “requires a singular focus on developing the requisite warrior ethos, and the pursuit of military excellence cannot be diluted to accommodate political agendas or other ideologies harmful to unit cohesion.” It goes on to say “Recently, however, the Armed Forces have been afflicted with radical gender ideology to appease activists unconcerned with the requirements of military service like physical and mental health, selflessness, and unit cohesion.” Basically, the argument is that being trans is a medical condition or physical defect that requires excessive medical treatment or hospitalization, and it is also a mental health condition and interferes with a soldier’s “commitment to an honorable, truthful, and disciplined lifestyle.” It says “A man’s assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member.”

This is all complete and utter nonsense, for a number of reasons. Being trans is not a mental health defect and the mere fact of being trans does not mean that a person is inevitably undergoing extensive medical treatments such that they cannot serve. Equating the two as one in the same is overbroad and does not serve the stated purpose of ensuring military excellence, because a person can be trans and also capable of serving. And listen I know my audience and I know I’m preaching to the choir and also a few trolls that don’t actually care what I have to say, but I wanted to point those things out because it is important to note that there are incredibly strong, valid legal arguments why this trans ban on the military should not stand. Beyond your or my ethics or beliefs about the humanity of trans people and their right to exist, there are legal arguments as to why this executive order is discriminatory and the government has not given any reason why this executive order singling out trans servicemembers specifically is necessary, especially given the standards already in place within the military to ensure members are fit to serve. Additionally, the US military has about 2.8 million members. Of them, approximately 4000 are known to be trans. That’s about .2 percent of the military.

As with all attacks against trans people, they represent such a tiny percentage of the overall population that there is no reasonable basis to find that their presence in the military plays a role in undermining the lethality of our forces or presents a threat to national security. Nor does being trans inhibit a person’s ability to be committed to an “honorable, truthful, and disciplined lifestyle,” something that a number of cis gender current and former members of the military seem to struggle with. A study from 2023 found military service to be the single strongest predictor of violent extremism, that military experience is “the single strongest individual-level predictor" of whether a person will commit a mass casualty event. The study found that people who served in the military “are 2.41 times more likely to be classified as mass casualty offenders than individuals who did not serve in the armed forces.” I’m not saying everyone who’s served is violent, criminal, or extremist. I’m just saying the idea that it’s the trans people in the military who struggle with committing to an “honorable, truthful, and disciplined lifestyle” is not backed up by the government or the stats or the data or the findings.

And this is an important argument because when the government is singling out a group based on their gender, the government has to prove that the law serves an important government interest and is substantially related to achieving that interest. That standard is also known as intermediate scrutiny. Anytime a quasi suspect class of people are singled out for their sex and treated differently under the law, the equal protection clause of the 5th amendment requires the courts to scrutinize whether the law violates that group of peoples’ equal protection under the laws. If the discrimination is gender related, it requires intermediate scrutiny. Where the discrimination is based on race, it requires an even higher level of scrutiny, called strict scrutiny. In cases where the law does not discriminate against an established suspect class of people, then it just gets rational basis review, meaning the government just has to show there was some basic, rational basis for why they passed the law. It’s an incredibly low bar and most laws will pass that test.

However, the government is arguing that trans people are suffering from gender dysphoria which is a medical condition, the order is written based on that medical condition, so it’s not discriminating based on gender, it’s based on a medical condition that will get in the way of a person’s ability to serve. Therefore, because it’s not discriminating based on gender, then the order just needs rational basis review, and the government says the need for national security is clearly rational, this passes muster and should go into effect.

The plaintiffs obviously disagree. The named plaintiff is Emily Shilling, and there’s a reason they chose her to represent this class: she’s fucking impressive. Her bio on the American Institute of Aeronautics and Astronautics says, quote “Emily Shilling is a Commander in the United States Navy. … She was winged as a Naval Aviator in 2007 and … she conducted sixty combat missions in support of operations Enduring Freedom and New Dawn in both Afghanistan and Iraq. For her actions she was awarded three Air Medals and the Order of Daedalians Distinguished Airmanship Award. CDR Shilling graduated with honors from Test Pilot School and received her Master of Systems Engineering from the Naval Postgraduate School in 2015. She then served as an Electronic Attack Project Officer with Test and Evaluation Squadron Two Three (VX-23) where she conducted high risk test flights in support of the US Navy’s most advanced air combat systems to include the cutting-edge electromagnetic aircraft launch and recovery systems being installed in the latest generation of US Aircraft Carriers. Following the success of this tour she was selected as an Aerospace Engineering Duty Officer (AEDO) where she is now a Military Deputy Program Manager charged with developing and acquiring our nation’s next line of offensive and defensive air systems.

Her major efforts as a Systems Engineer have included the Kepler Interplanetary Space Telescope, the Next Generation Naval Fighter, and the Next Generation of Naval Mission Planning. These systems have and will push the art of the possible, offering unique challenges for systems integration and will perhaps be her greatest technical legacy.” Her story alone is proof that trans members of the military unequivocally promote the “military excellence” the trans ban executive order claims to be so concerned about. As the plaintiffs argue in this case, it is clear from the language and reasoning of the order that it is solely meant to discriminate against people because of the fact that they are trans, it is meant to demean and smear a small group of people, it is driven by animus, rendering them unequal to others, a clear violation of their 5th amendment right to equal protection under the laws.

They go on to argue that this executive order is not discrimination based on a medical condition, it is discrimination based on sex and thus deserves heightened scrutiny, saying “By forbidding military service by people who have “a gender identity inconsistent with an individual’s [birth] sex,” the military discriminates against individuals like active-duty Respondents because they are transgender. That is the very definition of being transgender. And “discrimination based on … transgender status necessarily entails discrimination based on sex,” as “the first cannot happen without the second.”” Which is a direct quote from a previous supreme court case, Bostock v. Clayton County, in which the Supreme Court found that Title VII prohibits discrimination on the basis of sexual orientation or gender identity because those forms of discrimination are tantamount to discrimination on the basis of sex. The ban clearly states service members can only serve in accordance with their birth sex, and any one who has ever attempted to transition to any sex other than their birth sex is disqualified from service. That is not based on a medical condition, that is based on sex. Periodt.

Further, the executive order is not limited solely to people who have been diagnosed with “gender dysphoria.” The ban applies to ALL transgender people, not just those with a diagnosis. Because it requires that all service members serve in accordance with their sex at birth and must never have attempted to transition to any sex other than their birth sex. There are no exceptions for anyone not formally diagnosed with gender dysphoria. It is targeted at all transgender people, period. That is not based on a “medical diagnosis” as the government contends. The government is discriminating against people BECAUSE they are transgender, and their reasoning for why a transgender person cannot serve has no substantial relation to achieving their claimed interest in military excellence, as evidenced by the military excellence of trans servicemembers.

And given that the Supreme Court allowed the ban to move forward, indicates that they likely agree with the government. Now this was not a final ruling on the merits, it was an overturning of a temporary injunction that was temporarily blocking the order from going into effect pending the outcome of the case against it. The supreme court overturned that temporary injunction and gave no reasoning for doing so in their short, unsigned order. So the trans ban will go into effect while the case plays out, and the final outcome of the case, whether its in favor or against the trans ban, will inevitably make its way back up to the Supreme Court, where the court will get full briefs and oral arguments and then make a final decision on the merits of the case. Given that the court was willing to overturn a temporary injunction against the order does not bode well for those fighting against the trans ban, because the court would only likely overturn the injunction if they believed that the government will win the case on the merits when it comes back up again.

During Trump’s first term, a similar trans ban was put in place, and the Supreme Court at that time also overturned the temporary injunction, allowing it to go into effect while the case played out in court. Trump’s first term ended before the case concluded, so it was dropped and the trans ban was reversed by Biden, but yes please go off about how both parties are equally bad!!!

And that first trans ban was much more limited in scope than this one. That one barred trans people from enlisting, but it allowed current service members to continue serving while receiving gender-affirming care. This new ban is against enlisting AND kicks out anyone currently serving openly, cutting off their access to gender-affirming care and ordering them to voluntarily separate from the military. If they don’t voluntarily leave, they will face involuntary separation that will remain on their record and could affect their ability to obtain veterans benefits.

As recently reported by Mark Joseph Stern for Slate, quote “Trump’s first-term policy was cloaked in pretext, carefully crafted to avoid evincing overt contempt for trans people. His new policy, formally issued by Secretary of Defense Pete Hegseth, does not bother with such niceties. … As U.S. District Judge Ana Reyes wrote when blocking the policy, this language is “soaked in animus” and “unabashedly demeaning,” an “unadulterated expression” of bigotry that “stigmatizes transgender persons as inherently unfit.”” And that judge is not the only one to have found that the EO violated the equal protection clause of the 5th Amendment. Judge Benjamin Settle, in his injunction, wrote “Transgender people have now been serving openly in the military for a decade—at higher rates than the cisgender population—and shown great bravery in uniform. If the problems alleged by the government existed, there would be documentation to support them. Such proof is entirely absent from the record.” Because there is no ounce of evidence to actually support the government’s claims, Judge Settle found that even IF it was not found that this was discrimination based on gender and thus subject to a higher level of scrutiny, even IF this order was just required to pass rational basis review, the ban is still completely irrational and unconstitutional.

Despite these well-founded arguments, the Supreme Court seems likely to uphold the ban whenever it makes its way before them again. As reported by Vox, the Supreme Court has a long history of precedent supporting the idea that where the military is concerned, the Constitution is less controlling. The Supreme Court has held regularly that the military is owed extreme deference because it is a matter of national defense. And what do I always say??? National security is ALWAYS a persuasive argument for the Supreme Court. Governmental actors have gotten away with all SORTS of atrocities under the guise of national security concerns. And even in peacetime, the Court will offer extraordinary deference to the military such that the bright clear guidelines of the constitution become blurred. For example, in the 1986 case Goldman v. Weinberger, the Court found the military could ban yarmulkes while in uniform because of the need to foster “instinctive obedience, unity, and commitment” which justified restrictions that would normally violate the First Amendment. And in Rostker v. Goldberg in 1981, the court held that a law that requires men, not women, to register for the draft was constitutional despite discriminating based on sex, because it was discrimination done in furtherance of national defense and military affairs. And because of this history, it is highly likely that the people in Trump’s orbit who are crafting these attacks against trans people know that overt discrimination in the context of the military is likely one of the easier battles to win in court as long as they can draw even the flimsiest of lines between the discrimination and the needs of the military. There doesn’t have to be, you know, EVIDENCE to back up the line, they just need to do anything, the bare minimum, to give the Supreme Court an excuse to say ok but it’s for the military!!!! The military needs it!!!

But there are other battles that trans people are fighting in court that also are an uphill climb. The case US v. Skrmetti was argued before the Supreme Court in December and the court has yet to issue a decision. That case is related to Tennessee Senate Bill 1, which prohibits medical treatments intended to allow "a minor to identify with, or live as, a purported identity inconsistent with the minor's sex" or to treat "purported discomfort or distress from a discordance between the minor's sex and asserted identity.” This is limited to hormone therapies like HRT and puberty blockers and does not pertain to surgical procedures for trans youth. Petitioners in that case, like the trans military ban case, argue that this is a violation of their guaranteed equal protection under the laws. Unlike the military trans ban, there is no “national security” argument available for the government here. They also have supreme court precedent on their side in Bostock v. Clayton County, which I mentioned before. In that case in 2020, the court ruled 6 to 3, finding “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Supreme Court will likely issue their decision in US v. Skrmetti next month, and the final decision will have widespread implications for trans youth care across the country. If the court decides that it is NOT discriminatory to ban trans youth from receiving hormone therapy, that will open the floodgates of states that have already attempted to pass those bans. It could also create the precedent necessary to allow for further discrimination against trans people writ large, not just trans youth, if the court argues that discriminating against someone for being trans is NOT sex discrimination. The decision has not been released yet, but a lot can be inferred based on how the justices behave during oral arguments–the questions they ask, their hostility towards one side or the other, can give an indication of where they’re at in the deliberation process. Analysts indicated on the day the oral arguments were heard back in December that it does not look good for the transgender plaintiffs in this case. The justices seemed interested in creating some sort of carve out so discrimination against trans people for “medical reasons” wouldn’t count as sex discrimination. This is concerning for women generally because there are all sorts of procedures that cis women get that could then be targeted if all of the sudden it’s open season for sex-based discrimination so long as there’s a medical reason for it. Like the vibe was so bad for the trans plaintiffs that at one point Justice Katanji Brown Jackson said “I’m getting kind of nervous” that some of the justices seemed eager to chip away at bedrock anti-discrimination principles.

As Vox reported on the day of the oral arguments, quote “The biggest question in Skrmetti, in other words, is likely to be HOW the Court finds a way to uphold Tennessee’s law, rather than WHETHER the Court does so. And it seems fairly likely that the Court’s opinion could fundamentally alter the rules governing sex discrimination by the government.”

Again, that decision will come down likely next month, and the trans military ban is now in effect even as that case continues to wind its way through the lower courts, so it’s unclear when the Supreme Court will get another chance to rule on that case. A similar ban on gender affirming care for trans youth, issued as an executive order on January 28th, is also facing legal challenges and has been temporarily paused pending the outcome of that case. That order would deny federal funds for providers of gender affirming care for people under 19. That case is also still ongoing. And across the pond, the UK’s top court ruled last month that the legal definition of “woman” is someone biologically born a woman, as JK Rowling terfs everywhere cheered. This means that now “women only” spaces can discriminate against trans women, trans women will be sent to male prisons, and intersex people I guess do not exist. How will people trying to enforce these “biological women only” spaces determine who is trans and who is not? Forced strip searches, perhaps?

It’s just so fucking stupid. Like, in my legal opinion, as a trained attorney, this shit is stupid. It is stupid policy based on bigotry, backed up by literally ZERO evidence that any biological woman has EVER faced danger from trans women. EVER. There is ZERO evidence that the US military is worse off because of trans service members. And on the other side there is AMPLE evidence that the trans members of the military serve to improve the military. That violence against trans people increases when laws are passed discriminating against them. That gender affirming care literally saves teen lives. But bigotry and hatred doesn’t need facts or evidence to exist, and now the basest impulses of the worst members of our society are being upheld by the highest legal authorities in the country.

To help, check out organizations in your area that support trans rights, or donate to the Trans Youth Emergency Project from the Campaign for Southern Equality, linked below. Listen to the stories of your trans friends and community, support trans youth, and support trans art. I got to see Jasmine 4 t open for Lucy Dacus on Monday and Jasmine genuinely stole the show, her song Guy Fawkes Tesco Dissociation is a fucking BOP. Support trans art.

All my videos are completely ad free and uncensored over on Patreon, Patreon dot com slash leeja miller.

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And if you liked this episode, you’ll like the one from Monday about Trumps attacks on local officials.

Leeja Miller
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