/stories/2019/01/what-does-the-scotus-ruling-on-the-transgender-military-ban-mean

What does the SCOTUS ruling on the transgender military ban mean?

By Robert C. Jones Jr.

What does the SCOTUS ruling on the transgender military ban mean?

By Robert C. Jones Jr.
UM law and political science professors weigh in.

When the Supreme Court on Tuesday ruled 5-4 that President Trump’s restrictions on most transgender people from serving in the military could go into effect, even as a legal battle over the policy continues in the lower courts, activists in the LGBTQ community reacted with anger, calling the decision a step backward.

Trump had announced the ban in July 2017 via Twitter, but nationwide injunctions had kept the policy from being implemented. Now, with this week’s ruling, the Trump administration’s restrictions could move forward, reversing an Obama-era policy that would have allowed transgender women and men to serve openly in the armed forces.

What does Tuesday’s Supreme Court ruling mean? Will the court eventually hear the merits of the case? Two University of Miami faculty members—the School of Law’s Charlton Copeland and the College of Arts and Sciences’ Merike Blofield—give their insight.

What does the court’s decision mean for transgender people who are already serving in the military?

At present it means that the administration’s restrictions on the service of transgender persons are able to go into effect. This means that those who are attempting to join the armed forces and have been diagnosed with gender dysphoria prior to such an attempt are required to demonstrate stability in their biological sex for a period of 36 months, and demonstrate that they do not require a change in gender as a treatment for gender dysphoria. Clearly, this expands the bases upon which service personnel may be separated from service. For persons with gender dysphoria who have transitioned to a preferred gender and who seek to join the military now, the policy prohibits their military service altogether.

—Charlton Copeland, professor of constitutional law and the M. Minnette Massey Chair in Law

How much of a blow is this decision for the LGBTQ community?

This court case is part of a broader plan by the Trump administration to legally redefine gender based on biological sex. With this plan, a person’s gender would be determined by the genitals that a person is born with. What does this mean? The change would eliminate protections afforded transgender people under the Obama administration. It would essentially eradicate federal recognition of an estimated 1.4 million Americans who identify as a gender other than the one they were born into. Of course, in this specific court decision regarding transgender individuals in the military, the vast majority of the transgender community will not be directly affected, and the case is not even supposed to affect those who are already serving openly in the military. However, as the military, this case has a lot of symbolic importance and signals that the federal government and Supreme Court majority are willing to support discrimination against this group of people. It is important to point out that this goal of the Trump Administration to legally redefine gender based on biological sex (also reflected in its proposed changes to Title IV protections for transgender people) goes against decades of science on the topic. Researchers know that gender identity comes from the brain, not the body, and that it has deep biological roots. For some people, their gender identity simply does not match their genitalia, and some people have both x and y chromosomes.

—Merike Blofield, associate professor of political science and director of gender and sexuality studies in the College of Arts and Sciences

This is a policy that appears committed to “re-closeting” transgender persons. It attempts to separate those who are gender dysphoric from those who seek treatment for this diagnosis. Such a distinction makes it less likely that transgender persons will be forthcoming about their gender dysphoria given what such a disclosure triggers regarding what must be established to fit within the exceptions to the policy noted above. On a larger note, such a “re-closeting” seems to be a step in a direction that could have serious adverse consequences for bisexual, lesbian, and gay service members. The size of the closet may be much larger than transgender persons in the long term. The distinction here, however, is that there is likely more received evidence regarding the service of bisexual, lesbian, and gay service members on unit cohesion and the like such that the policy might be more easily combated. But the larger challenge to a more inclusive military certainly seems to have stalled.

—Charlton Copeland, professor of constitutional law and the M. Minnette Massey Chair in Law at the University of Miami’s School of Law

The court allowed the ban to go into effect even though it’s an issue still being played out in the lower courts. Given the complexities of this case, how long could it potentially be until the lower courts decide on the case?

Given the fact that the court did not accept the administration’s request to take the case now, it will likely take at least another Supreme Court term before the case is heard.

—Charlton Copeland, professor of constitutional law and the M. Minnette Massey Chair in Law at the University of Miami’s School of Law

The Trump administration had asked the Supreme Court to take up the issue even before the appeals courts could rule. But SCOTUS denied that request. Does the fact that SCOTUS is allowing the ban to take effect suggest that the court will eventually decide the case on its merits?

It suggests that there is likely support for the administration’s position as an exercise of executive authority and the reasonableness of the administration’s decision.

—Charlton Copeland, professor of constitutional law and the M. Minnette Massey Chair in Law at the University of Miami’s School of Law

The vote was 5-4, with the five conservative justices in the majority. If and when the court does decide the merits of the case, could the 5-4 vote be a sign that the administration will prevail?

Yes and no. Surely the decision to lift the stay suggests something, but some justices are not keen on stays as a matter of course. And so I would not want to state that the final decision will line up like this one. But if we think about, for example, the travel ban, it too was a 5-4 decision. [Last June, the Supreme Court, by a 5-4 decision, upheld President Trump’s ban on travel from certain majority-Muslin countries.] That may give us some indication as well. Here, there doesn’t seem to have been the volume of anti-transgender rhetoric that was seized upon by Justice [Sonia] Sotomayor in her dissent in that case, but I think it may be illustrative of the issues.

—Charlton Copeland, professor of constitutional law and the M. Minnette Massey Chair in Law at the University of Miami’s School of Law

Some people have claimed that allowing transgender people to serve in the military has negative effects on the military. Is there any basis for this?

No. Similar arguments were made against African-Americans, women, and gays and lesbians, in the military.

—Merike Blofield, associate professor of political science and director of gender and sexuality studies in the College of Arts and Sciences

The decision to allow this ban to take effect comes almost 55 years since the signing of the Civil Rights Act of 1964, the landmark civil rights and U.S. labor law in the United States that outlaws discrimination based on race, color, religion, sex, or national origin. What message does allowing this ban to go forward send to our society? Are we regressing?

The message is: For the federal government, established science and human rights and wellbeing do not matter on this issue. Yes, we are regressing.

—Merike Blofield, associate professor of political science and director of gender and sexuality studies in the College of Arts and Sciences

On the day the Supreme Court said it would allow the transgender military ban to take effect, the court also said it would examine a New York City ban on transporting a licensed and unloaded handgun outside city limits, making this the first Second Amendment challenge it has accepted in almost a decade. How much of a sign is this that the court, now with a conservative majority, is ready to look at other laws that restrict gun rights?

This has been a lively debate since the court’s historic decisions in Heller and McDonald—that is, the scope of the Second Amendment right. Some have argued that it is a “home-bound” right only. This case may force us to engage that conception of the Second Amendment. That the court has decided to take this case suggests that there is a possibility that they are ready to clarify, at least to this extent, the scope of the Second Amendment.

—Charlton Copeland, professor of constitutional law and the M. Minnette Massey Chair in Law at the University of Miami’s School of Law