Note: Most of this post was published earlier, but I thought it appropriate to re-post it now that the Trump White House is carrying out its promise to banish transgender patriots from the military.
Donald Trump worries that transgender patriots in the military would cause two problems: 1) a distraction at a time when our nation needs to be focusing on serious issues, and 2) excessive financial costs. By those two criteria, it is Donald Trump and not transgender patriots who must go. As Trump puts on the unfunniest circus act in American political history and empties the coffers of the Secret Service in the process, his concerns about distractions and costs ring hollow, to put it mildly.
At any rate, let’s get to the law.
The Equal Protection Clause of the Fourteenth Amendment to the US Constitution bans arbitrary or malicious governmental discrimination against any group when that discrimination is undertaken just for sport. I have explained the basics of equal protection elsewhere, so I won’t do it again. Let’s focus on the bottom line.
There are two available equal-protection arguments against Trump’s purported ban on transgender Americans serving in the military.
I. Sexual orientation and gender identity should be suspect classifications.
The first is that the group being targeted by the government (in this case, transgender Americans or, more broadly, LGBTQ Americans) is — or should be — what courts refer to as a “suspect class.” A law that targets a suspect class is almost always ruled to be unconstitutional.
I often say that federal courts see the Equal Protection Clause as setting the rules of the playground. A playground monitor (courts) will only stand around for so long as a playground punk (a hostile majority) harasses and abuses a vulnerable target (a discrete and insular minority). This is an apt metaphor as a vulgar manchild (Donald Trump) savages a group so small that it cannot possibly, without an assist, defend itself against majoritarian aggression (transgender Americans).
A suspect class is a group that has been targeted by the majority (through its lawmaking power) for long enough that federal judges (the grownups on the playground, who are unelected and largely immune from frenzied majoritarian delirium) finally say, “That’s enough.”
Courts are especially prone to intervene when the group that’s being targeted is being targeted because of a characteristics unrelated to bad behavior or moral blame. It’s one thing to target speeders for speeding or conspirators for conspiring; it’s quite another to target Italians for being Italian or children born out of wedlock for being born out of wedlock. What does a person’s ethnicity or the marital status of her parents at her birth have to do with wrongfulness or, for that matter, her ability to meaningfully contribute to society?
So courts have developed a 3-factor test for determining whether a group is the kind of group (suspect class) that the Equal Protection Clause protects: 1) whether the group shares an immutable, innate characteristic; 2) whether the group has suffered through a history of being abused and unable to protect itself, and 3) whether the targeted characteristic has anything to do with a group’s ability to contribute to society.
To any but the most corrupted mind, these factors are easy to apply in the case of the LGBTQ community. First, if the sexual impulses or feelings of belonging to one gender or the other were impulses and feelings that you engineered and orchestrated and controlled shortly before, during, or after puberty, good for you. The rest of us were at the mercy of a tornadic force called nature. Second, scores of laws and policies have targeted LGBTQ Americans just in the last several decades, let alone throughout our history. Third, as any fair-minded soldier, sailor, or airman will acknowledge, one’s sexual orientation, gender identity, gender expression, or transgender status has nothing to do with one’s ability to fight or willingness to die for one’s country.
None of this means that the Supreme Court will do what it should and rule that the LGBTQ community is a suspect class. The Court hasn’t done it yet, and it might still be unwilling to tackle these questions. Does that mean that our transgender brothers and sisters and neighbors who are targeted by this Trump policy will lose?
No. This brings us to the second way to win.
II. Trump’s directive is based on animus.
Even if the LGBTQ community is not a suspect class, any law or government policy is unconstitutional if it has no rational basis, meaning that the means employed by the law are not rationally related to the achievement of some legitimate interest. In English, that means that transgender Americans can win by showing either a) that Trump is up to no good — and thus has no legitimate interest in mind, or b) that Trump’s policy is just plain nuts.
If this Trump policy comes before a Supreme Court that still counts Anthony M. Kennedy among its members, we won’t get to (b) above. The Court will strike the policy down on (a). Here’s why.
Every time Justice Kennedy has had a chance to address a major LGBTQ-rights case (and he’s authored the opinion in every one of those cases), he has said that he need not address whether the LGBTQ community is a suspect class (or whether the sexual conduct commonly associated with the LGBTQ community involves the exercise of some kind of fundamental right) because laws targeting LGBTQ Americans cannot even survive the lowest level of court review: the aforementioned rational-basis test.
As Kennedy has said repeatedly in these cases, “A bare desire to harm a politically unpopular group can never constitute a legitimate state interest.” In fact, Kennedy has written that if the Equal Protection Clause means anything at all, it must at least mean that. And Kennedy, along with the Court’s liberals, has always seen what was really behind anti-LGBTQ laws or policies: a bare desire to score cheap political points at the expense of a popular whipping post. Courts have a word for that: it’s called animus.
Check out this recent tweet from journalist Jonathan Swan:
Quite obviously, this Trump stunt has nothing to do with military preparedness or any other legitimate concern; it has everything to do with dredging up the instinct among masses of American rubes (Trump voters) to stick it to transgender Americans, an easy political target, just because they can.
That is the very legal definition of animus, and it provides the likely rationale Kennedy will use when he authors the opinion striking this policy down.