Advertisement

Transgender military ban’s ‘unit cohesion’ claim fails spectacularly in court

The Trump administration is still losing at every turn.

A group of transgender veterans and service members participated in a wreath-laying ceremony at the Tomb of the Unknown Soldier at Arlington National Cemetery in June. CREDIT: MANDEL NGAN/AFP/Getty Images
A group of transgender veterans and service members participated in a wreath-laying ceremony at the Tomb of the Unknown Soldier at Arlington National Cemetery in June. CREDIT: MANDEL NGAN/AFP/Getty Images

In four different courts across the country, the Trump administration is still defending its attempt to ban transgender people from serving in the military. This week, a federal judge in California once again denied the administration’s attempts to reinstate the ban, eviscerating their purported rationales for the discriminatory policy.

All four courts have imposed injunctions on the ban, but the administration has been fighting to lift these so they can enforce the ban. In his latest opinion denying a request to dissolve his injunction, U.S. District Judge Jesus Bernal explained that claims of “military readiness” and “unit cohesion” simply do not survive scrutiny as reasonable justifications.

Following the military’s “study,” which appeared to be rigged against transgender service and heavily influenced by Vice President Pence and anti-LGBTQ groups, the administration claimed that transgender people were not fit to serve if they have ever been diagnosed with gender dysphoria. This presumption flies in the face of all professional medical organizations, but Bernal also noted massive inconsistencies that reveal a clear attempt to simply discriminate against transgender people.

Under the way the ban is currently framed, what matters is whether a service member requires or has undergone gender transition. They can serve if they’ve been diagnosed with gender dysphoria so long as they haven’t transitioned, but people who have transitioned but haven’t been diagnosed with gender dysphoria cannot serve. “In short,” Bernal explained, “the policy aims to eliminate a person’s transness, and nothing else.” It therefore makes no sense to say that either surgery or dysphoria will inhibit readiness when neither is a consistent factor in who is banned.

Advertisement

The military has proffered the “unit cohesion” argument every time there has been a question of integrating a certain group into the military. In the case of transgender people, they emphasize “privacy” concerns from cisgender women who feel transgender women are somehow inherent threats to their safety. Notably, conservatives expressed concern about “showering with homosexuals” in the fight over lifting “Don’t Ask, Don’t Tell” in a similar fashion.

Bernal carefully dismantled the prejudiced history of this argument:

In the history of military service in this country, “the loss of unit cohesion” has been consistently weaponized against open service by a new minority group. Yet, at every turn, this assertion has been overcome by the military’s steadfast ability to integrate these individuals into effective members of our armed forces. As with blacks, women, and gays, so now with transgender persons.

The military has repeatedly proven its capacity to adapt and grow stronger specifically by the inclusion of these individuals. Therefore, the government cannot use “the loss of unit cohesion” as an excuse to prevent an otherwise qualified class of discrete and insular minorities from joining the armed forces. The Court finds this justification of the transgender ban is not exceedingly persuasive and cannot survive intermediate scrutiny.

Bernal had previously rejected the government’s third argument, which was that integrating transgender people would be too costly because of their medical expenses.

In the other cases challenging the ban, the Trump administration is fighting to avoid having to release thousands of internal White House documents related to how the ban was implemented. The Justice Department even appealed to the Supreme Court this week to avoid having the documents be released, but the lower court in Washington issued a temporary stay to further consider arguments about the emails and correspondence.

Advertisement

Everything from the arbitrary way President Trump first tweeted the ban to the sham of a study panel used to justify it post hoc suggests that these documents will reveal the pure discriminatory intent behind the ban. As it is, the government’s justifications to the courts have not managed to convince any judges that the ban has any legitimate basis other than anti-trans bias.