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Today, Congressman Jerrold Nadler (D-NY), senior Member of the House Judiciary Committee and former Chairman and Ranking Member of the Constitution Subcommittee, joined more than 50 House Democrats from the Judiciary Committee, Armed Services Committee, and the Congressional LGBT Equality Caucus in a letter to Secretary of Defense James Mattis and Joint Chiefs of Staff Chairman General Joseph F. Dunford, Jr. to urge that they not comply with any unconstitutional directive to ban transgender individuals from serving in the United States military.
The letter was led by House Judiciary Committee Ranking Member John Conyers, Jr. (D-MI) and House Armed Services Committee Ranking Member Adam Smith (D-WA). In addition to the letter, Rep. Nadler joined with Representatives Conyers, Smith, and Ciccilline (D-RI) in releasing the following statement:
“President Trump’s recent Twitter announcement banning military service by transgender individuals is not only bad policy, it is unconstitutional. It defies common sense to deny the military these service members' "mission-critical" skills. No American who is willing and able should be denied the honor and responsibilities that come with serving in our Armed Forces solely on the basis of their status as the member of a protected group.
“Unfortunately, President Trump’s proposed ban is yet another troubling sign of his willingness to make impulsive policy decisions while ignoring military leadership. We appreciated the measured response of Secretary Mattis General Dunford and other military leaders in response to President Trump’s rash announcement of a proposed discriminatory and unjustified ban on military service by transgender individuals. We would urge President Trump to stop making policy via Twitter and to consult America’s professional military leadership before making decisions that affect the lives and safety of our citizens.”
Thousands of transgender individuals are currently serving in the United States Armed Forces. Trump’s July 26th Twitter announcement to ban transgender individuals from the military has received much backlash. More than 50 retired senior military officers recently released a statement opposing the ban on the grounds it would degrade military readiness. Trump’s announcement is particularly troubling in light of recent news reports regarding President Trump’s meetings with Secretary of Defense Mattis and other military leaders to discuss the war in Afghanistan, in which he complained that the U.S. is ‘losing’ and insinuated he should ignore strategic advice from high-ranking military officials by likening the war to the renovation of a New York City restaurant.
Full text of today’s letter is available here and below:
August 4, 2017
The Honorable James Mattis
Secretary of Defense
1000 Defense Pentagon
Washington, DC 20301
General Joseph F. Dunford, Jr.
Chairman of the Joint Chiefs of Staff
9999 Joint Staff Pentagon
Washington, DC 20318
Dear Secretary Mattis and Chairman Dunford:
As Members of Congress with an abiding interest in our nation’s military and its policies towards the LGBTQ community, we write to not only express our strong opposition to President Trump’s recent tweets seeking to ban transgender individuals from the military, but to remind you not to comply with any unconstitutional directive which may ultimately be issued. We reject the premise that the presence of transgender troops interferes with the morale or combat readiness of our Armed Forces. We also echo the request made by our Senate colleagues in their letter to Secretary Mattis that “at a minimum” the Department of Defense not separate any transgender troops until the Department has completed its recently announced policy review and reports its finding back to Congress.[1]
On July 26, President Trump issued a three-tweet pronouncement that “the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military,” in contravention of the 2016 decision by the Obama Administration to allow transgender individuals to openly serve.[2] In response, General Dunford stated “there will be no modifications to the current policy until the President's direction has been received by the Secretary of Defense and the Secretary has issued implementation guidance,” and the Defense Department emphasized that while it awaits formal guidance from the White House, “the Department will continue … ensuring all service members are treated with respect.”[3] This week at a public forum, U.S. Coast Guard Commandant Paul Zukunft reiterated his support for transgender servicemembers stating “We have made an investment in you and you have made an investment in the Coast Guard, and I will not break faith.”[4]
We commend the professionalism displayed by the military’s leadership in their initial response to President Trump’s ill-conceived pronouncement. But as you are no doubt aware, federal court decisions have recognized that under our Constitution transgender people are protected against discrimination on the basis of sex – like everyone else – as well as on the basis of their transgender status.[5] The Supreme Court has also previously observed that the government is subject to constitutional limits even “in the area of military affairs.”[6] Moreover, any discriminatory military policy is particularly problematic when it does not draw “on the combined wisdom of [an] exhaustive examination in the Executive and Legislative Branches.”[7]
In the present instance, it is abundantly clear that any effort by President Trump to ban military service by transgender individuals would not only constitute poor policy, but would be unconstitutional on its face. This is true for a number of reasons:
- Instead of being grounded in a thoughtful deliberative process, the President’s policy was derived from a series of arbitrary and capriciously issued tweets.
- By contrast, the existing policy was developed in conjunction with the full leadership of the Armed Services, based on a review of all available data, including a comprehensive RAND Corporation study and input from independent experts, the transgender community, and medical professionals.
- It is not possible to justify the proposed ban based on the purported costs of health care. The RAND study estimated health care coverage for transgender service members would cost the military between $2.4 million and $8.4 million per year, less than 1/10 of 1% of the military’s annual budget.
- Instead of being developed based on any new quantitative data or policy input, the President’s proposal appears to be based on a raw political calculation, with a Trump administration official claiming the President’s tweets “forces Democrats in Rust Belt states like Ohio, Michigan, and Wisconsin, to take complete ownership of this issue.”[8]
- Instead of being developed in consultation with Congress, the proposal is strongly opposed by Congressional leaders. House Armed Services Committee Ranking Member Adam Smith (D-WA) noted that transgender servicemembers “are defending the United States around the world as we speak, and they have long done so with distinction” and “to push out those who have devoted their lives to this country would be ugly and discriminatory in the extreme.” John McCain (R-AZ), the Chairman of the Senate Armed Services Committee and Vietnam War veteran criticized the action, stating “We should all be guided by the principle that any American who wants to serve our country and is able to meet the standards should have the opportunity to do so—and should be treated as the patriots they are.” Similarly, Jack Reed (D-RI), the Ranking Democrat on the Armed Services Committee and another veteran observed, “Today, on the anniversary of President Harry Truman's order desegregating the United States Armed Forces, President Trump is choosing to retreat in the march toward equality.” Numerous additional Members on both sides of the aisle from the House and Senate have echoed these concerns, and the House recently rejected on a bipartisan basis an amendment to the Defense bill that would have prohibited the Department of Defense from paying for appropriate and medically necessary transition-related health care.
- The proposed ban categorically excludes an entire group of people from military service on the basis of a characteristic that has no relevance to their capacity to serve.
As the respected leaders of our brave armed service members, you have no obligation to implement a hastily considered tweet designed to serve as a “wedge” political issue; but rather you should honor your own independent duty to support and defend the Constitution of the United States. We believe any serious or credible review of the law and the facts in the present case make it clear that the President’s proposed ban on transgender people serving in the Armed Forces will weaken, not strengthen our military, and is blatantly unconstitutional.
We would welcome the opportunity to discuss these matters with you at your earliest convenience.
[1] Letter from Sen. Kristen Gillibrand (D-NY) and 44 Senators to the Honorable Jim Mattis, Secretary of Defense (Jul. 28, 2017).
[2] Donald Trump (@realDonaldTrump), Twitter (Jul. 26, 2017, 5:55 AM); Donald Trump (@realDonaldTrump),Twitter (Jul. 26, 2017, 6:04 AM); Donald Trump (@realDonaldTrump), Twitter (Jul. 26, 2017, 6:08 AM).
[3] Bryan Bender and Jacqueline Kilmas, Pentagon takes no steps to enforce Trump’s transgender ban, Politico (Jul. 27, 2017), available at https://www.politico.com/story/2017/07/27/trump-transgender-military-ban-no-modification-241029.
[4] Gregory Hellman, Coast Guard chief to transgender personnel: ‘I will not turn my back’, Politico (Aug. 1, 2017) available at https://www.politico.com/story/2017/08/01/transgender-military-ban-trump-coast-guard-chief-react-241206.
[5] See, e.g., Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1047-50 (7th Cir. 2017) (high school’s policy barring transgender student from using the boys’ bathroom violated Title IX and the Equal Protection Clause of the Fourteenth Amendment); Glenn v. Brumby, 663 F.3d 1312, 1318-19 (11th Cir. 2011) (supervisor’s purported concern that other women might object to transgender employee’s restroom use was not a sufficiently important governmental interest to justify termination under the Fourteenth Amendment); Smith v. City of Salem, 378 F.3d 566, 574-75 (6th Cir. 2004) (transgender fire department employee’s allegation of discrimination based on gender non-conforming behavior and appearance sufficient to support claim of sex discrimination under the Fourteenth Amendment and Title VII).
[6] Weiss v. United States, 510 U.S. 163 (1994).
[7] Michael Paradis, Why Transgender Service Members Will Win in Court, Lawfare Blog (Jul. 28, 2017, 12:06 PM), https://lawfareblog.com/why-transgender-service-members-will-win-court (Internal quotations omitted).
[8] Trump will ban transgender people from U.S. military, Axios Blog (Jul. 26, 2017), https://www.axios.com/military-will-deny-transgender-troops-in-any-capacity-trump-tweets-2465743543.html (“Quote from a Trump administration official: ‘This forces Democrats in Rust Belt states like Ohio, Michigan, and Wisconsin, to take complete ownership of this issue. How will the blue collar voters in these states respond when senators up for re-election in 2018 like Debbie Stabenow are forced to make their opposition to this a key plank of their campaigns?’”).
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