OPINION | Trump abandons transgender patriots

President Trump surely has the power to stop accepting or allowing transgender individuals to serve in the military, reversing an Obama-era Pentagon policy — but he shouldn’t and a Constitutional challenge based on the Fifth Amendment’s Due Process clause might stop him. 

But before we address a possible Constitutional challenge, we should consider the test put forth by Defense Secretary James Mattis: Does permitting the open service of transgender individuals affect the “readiness and lethality of our forces?”

{mosads}We agree with the test, and after a year-long study that culminated with a debate hosted by the Military Affairs and LGBT Rights Committees of the New York City Bar Association, which we lead, we issued a report last week concluding that permitting open transgender service will have no effect on military readiness.

Nonetheless, the president’s tweets indicate that he has concerns on this very question by claiming that open transgender service will distract the armed forces from “decisive and overwhelming victory” and generate burdensome “medical costs and disruption.”

President Trump, there is no need to worry because the most recent evidence demonstrates that those concerns are misplaced. 

First, compelling the military to revisit a policy it already studied extensively and re-engage in a culture war is more likely to distract the armed forces from its mission than allowing the existing policy to remain.

Although opponents claim that permitting transgender service will impair “unit cohesiveness” — i.e., that military personnel will not want to serve alongside transgender individuals — a study conducted earlier this year by West Point’s Department of Behavioral Sciences and Leadership discovered the opposite.

Cadets and officers were agreeable to serving with transgender individuals. Also, 18 other countries permit transgender individuals to serve openly, including Canada, Australia, Israel and the United Kingdom, and to date there is no indication that open transgender service in those countries has impaired operational effectiveness, military readiness or unit cohesion. 

Second, the costs are low. A Pentagon study conducted by the RAND Corporation estimated annual costs of $2.4 to $8.4 million, representing a 0.04 to 0.13 percent increase in military healthcare expenditures for the active forces. 

Third, the legal problem: The military is — like all of us — subject to the Constitution, and re-instating the ban on open transgender military service runs the risk of violating the Fifth Amendment’s Due Process protections. In 1981 the Supreme Court ruled in Rostker v. Goldberg that the Due Process clause applied to the armed forces and that the government must demonstrate an “exceedingly persuasive” justification for sex-based distinctions that is “substantially related” to “important governmental objectives.” Here, it is hard to see how that test can be passed in light of the existing evidence.

There are other important concerns too, especially given the president’s tweet that “the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.” 

After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow……

— Donald J. Trump (@realDonaldTrump) July 26, 2017

….Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming…..

— Donald J. Trump (@realDonaldTrump) July 26, 2017 

What will happen to the uniformed personnel who disclosed that they are transgender when the Obama Defense Department announced that they could serve openly? Many have been serving honorably and in certain cases in combat. Will they be discharged? If they are, will the fact that they disclosed their transgender status mean that they are discharged without honor, which may preclude them from receiving VA or other benefits that they reasonably expected after years of military service? 

Jennifer Long, who served in the U.S. Army for 30 years, and received the Bronze Star for combat service in Afghanistan, transitioned while still on active duty. From her perspective, banning transgender individuals not only harms these service members, but it also harms our national defense.

“The armed forces have trained thousands of transgender service members at substantial cost to perform vital combat missions — forcing them out risks losing that substantial investment and also wrongly threatens the benefits they reasonably expected to earn in exchange for their service,” she said to me. 

Transgender Americans have likely served in the armed forces clandestinely since our nation’s inception — and are more likely to join the military than the U.S. population as a whole. They include decorated combat veterans with decades of military service, and some of them may be just shy of reaching the necessary years-in-service to qualify for a full pension and other benefits. 

In good faith many of them recently disclosed their status based on a policy change issued under the prior administration. Turning their reasonable expectations upside down now and threatening them with discharge is not only unconstitutional, but it is morally unsound as well. 

Michael Richter and Anna Pohl are the chairs of the New York City Bar Association’s Military Affairs and LGBT Rights Committees, respectively, and are attorneys based in New York City.

The views expressed by contributors are their own and not the views of The Hill.