WASHINGTON — Today marks the beginning of what could become another challenge to a Trump administration policy before the nation’s highest court.

Almost immediately after President Trump formally issued a directive barring transgender individuals from enlisting in the U.S. armed services Friday, the American Civil Liberties Union vowed a legal challenge.

“We’ll see you in court,” the group tweeted to the president Friday night. The next day the ACLU added a timeline. “We’re filing on Monday. #TransMilitaryBan”

Trump’s directive bars transgender individuals from enlisting in the military and also bans coverage of transition-related health care and extends to transgender people already enlisted. The measure also directs Secretary of Defense James Mattis to determine the fate of transgender individuals already serving in the military based on their “deployability,” a standard that has yet to be formally established.

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This sets up yet another legal battle between two conflicting principles: the federal government’s broad authority to govern military policy — including determining fitness for military service — and the Constitution’s prohibition against discrimination and denial of equal protection under the law.

It comes on the heels of another challenge to a Trump administration policy that has already made it to the U.S. Supreme Court: Trump’s executive order barring nationals from six majority-Muslim countries from admission into the country. The Supreme Court will hear arguments in that case in October.

But the challenge to the ban on transgender service members wades into even more uncharted legal waters. The U.S. Supreme has not ruled directly on the issue of transgender rights. It got the chance when it took up a challenge to a North Carolina law requiring individuals to use the bathrooms based on their gender at birth. But justices ultimately remanded that case earlier this year when the Trump administration rescinded the Obama-era policy that formed the basis of the legal challenge.

Still, the Trump administration faces a high hurdle. Even if the court doesn’t reach the question of whether transgender individuals are protected under gender discrimination laws, it could hold that the government — which argued for the need of the ban to cut medical costs and reduce military disruption — has not stated a rational basis of denying individuals the right to enlist based on their gender identity. If the court does hold that gender discrimination laws apply, the burden the government would have to prove would be even higher.


(c)2017 the Boston Herald

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