Back in August President Trump ordered Defense Secretary James Mattis to not accept the enlistment into the military of openly transgender individuals. Since then lower courts have ruled to block that order and as of January 2nd the U.S. military may have to, at least temporarily, accept transgender enlistments. Two U.S. courts of appeals ((Fourth Circuit and D.C. Circuit) upheld the lower court’s preliminary injunctions.
It is not clear why the administration has not sought a stay from the Supreme Court. The primary issue is not really whether these transgender individuals are fit for military service, but rather the powers delegated to the President under the United States Constitution.
From a statement by Elaine Donnelly of the Center for Military Readinessyesterday:
“Under Article III of the U.S. Constitution, the federal courts have no authority to make policy regarding the military. The Department of Justice (DoJ) should have protected the constitutional rights of President Donald J. Trump by filing an emergency appeal with the Supreme Court immediately after the District of Columbia and Fourth Circuit Courts of Appeals denied requests for stays of lower court preliminary injunctions. The issue is not the military transgender policy alone, but who gets to decide what the policy will be. By failing to petition the Supreme Court to stay the lower court orders, the DoJ has tacitly conceded that federal judges can make military policy and establish medical standards for enlistments.”
Even if one doesn’t take Constitutional issues into account (and one should take the Constitution into account) transgenders often suffer from severe mental illness and have suicide rates approaching 40% which is even higher than that for schizophrenics who currently cannot serve in the U.S. military.
The expense and difficulty of dealing with the needs of this small minority of individuals should not be allowed to sabotage the U.S. military the function of which is to defend the United States, however sympathetic one might be for some of these unfortunate individuals. Sympathy and compassion is not the issue. An efficient and effective military and the Constitutional right of the President to direct that military as the Commander-In-Chief is the issue.
One theory of why the administration has not sought a stay from the Supreme Court is that the Defense Department is currently conducting a “study” and will continue to litigate later this year using results from that study. In the meantime transgender recruits may have clauses in their enlistment contract specifying that they can be discharged if the administration prevails in court and specifically stating that the government will not pay for any transgender treatments (e.g., sex-reassignment surgery) during their enlistment.
Let us hope that is the case and the Trump Administration fully plans to protect the rights and authority of the Presidency from Left wing courts and hopefully they will prevail in the Supreme Court. That also may be more likely if the President has the opportunity to appoint more Conservative judges to the high court who will protect the Constitution.