Lawyers are always looking for clients, but — until now — they have to find a client who has actually suffered harm before filing a lawsuit seeking damages for harm. But lawyers for five newly reconstructed women, each identified only as Jane Doe to preserve anonymity, have filed a lawsuit in the U.S. District Court in Washington arguing that President Trump’s tweet that he would bar transsexuals from serving in the military services violates both the Equal Protection clause of the 14th Amendment and the due process clause of the Fifth Amendment to the Constitution.
It’s not clear how any of that “trumps” Mr. Trump’s undisputed constitutional role as commander in chief of the military. Article II, Section 2, states unambiguously that “[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”
“After consultation with my generals and military experts,” the president tweeted on July 26, “please be advised that the United States government will not accept or allow transgender individuals to serve in any capacity in the U.S. military.” The president may eventually issue a directive to that end, but so far he has not, and a tweet is not a directive. There’s always the possibility that lawyers can find a judge who hankers to be the man in charge, and will entertain such a novel lawsuit, and that would set an unusual precedent for an appeals court to knock down.
On its merits, if any, the plaintiffs concede that Mr. Trump would only be reinstating the “status quo ante,” restoring the commonsensical ban in effect until a little more than a year ago, before President Obama and his Secretary of Defense Ashton Carter — neither of whom have any military experience beyond observing Veterans Day — broke open the transgender closet door.
Such a directive, if there ever is one, would deprive no one, Jane Doe or John Doe, of a “right.” There is no right to serve in the military, in whole or in part as a member of any sex. Hundreds of physical and mental illnesses, impairments and other conditions bar military service. The military, dating from a more enlightened day, has always been charged with deciding who may serve.
There’s no good reason that “gender dysphoria” should get an exemption, which would have an extremely narrow application. By one authoritative estimate, as few as 1,320 transgender soldiers, sailors and Marines now serve among the 1.3 million men and women in uniform. Despite all the noise, that turns out to be only about one in a thousand.
Unlike the “Don’t Ask, Don’t Tell” prohibition on homosexuals serving openly, the transgender ban was not repealed by Congress. The new policy was decreed by Mr. Carter by administrative fiat, absent any congressional action. In similar fashion, Mr. Trump has reversed it. “Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail,” the president said.
Mr. Trump is not bound by actions taken by the prior administration which he thinks are wrong or damaging to the fighting ability of the armed services. The president should follow up his tweets by converting them to a directive, and make sure it gets done. He will meet resistance at the Pentagon, especially among Obama holdovers. The Army and the Navy have always had their ways to deal with insubordination, and they can do it again if necessary.
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