President Donald Trump’s Wednesday announcement on Twitter that transgender men and women will not be allowed to serve in the military “in any capacity” was not a complete surprise: Last month, Defense Secretary James Mattis announced that the military was hitting the pause button on an Obama-era plan to welcome openly transgender people into the military.
But the announcement was a legal land mine. The Trump administration may soon learn that singling out a class of people for exclusion violates the constitutional guarantee of equal protection under the law. And as to those transgender soldiers already serving openly, any effort to expel them would face even more profound difficulties.
Recall that, until 2011, gay and lesbian soldiers were prohibited from serving openly in the military. When the so-called “Don’t Ask, Don’t Tell” policy was repealed, though, military policy still excluded transgender men and women from service. Then, on June 30 of last year, Defense Secretary Ash Carter announced a policy to phase in trans soldiers, which was to have been completed no later than one year later — at the end of last month.
While the military ramped up to implement rules and procedures to make that goal take place smoothly, a ban on discharging trans soldiers went into effect immediately. That means that since June 30 of last year, transgender soldiers already serving came out, while others joined the military because of the policy shift.