Does the Constitution really require the military to induct everyone who wants to join?

Does everyone have a constitutional right to be in the military?  Are the legal issues associated with gays and lesbians serving openly in the military exactly the same as those concerning inducting transgender people?   Some people seem to think the answers are “yes,” but insofar as they are talking about what the Constitution requires (or, for that matter, permits), they’re mistaken.

As much as we can, let’s try to take partisan ideology and personal sentiment out of this highly-emotional issue and focus instead on what, as a matter of law, the Constitution may or may not mandate.  To be clear, this is not about what may or may not be desirable policy, and not about any moral judgement (which is irrelevant here) about someone’s internal sense of gender.  Everyone we should care about wants transgender people to be treated fairly under the law, just the same as anyone else.

Let’s start by reviewing the context.  As readers no doubt know, last week President Trump said he intended to reinstate the ban on transgender people serving in the military because, he says, of the “tremendous medical costs and disruption.”  (The ban is not yet effective as the Pentagon has yet to received “formal guidance” and – who knows? – the President may decide to reverse himself.)

Still, what could we expect in terms of the inevitable litigation should the ban be reinstated?  In a blog post last week, Michel Paradis, a senior Department of Defense (DoD) attorney representing Guantanamo detainees, expressed his view as to “Why Transgender Service Members Will Win in Court.”  His analysis relies principally on district and circuit court litigation concerning the now-defunct “don’t ask, don’t tell” policy (which barred gay and lesbian people serving openly in the military) to conclude that transgender people are similarly situated and will, therefore, prevail in the expected court battles.  I believe his reliance on those cases is misplaced.

Why? Transgender people are not medically similarly-situated.  For an armed force that needs its members to deploy on short notice anywhere in the world (the U.S. has 800 bases abroad, including places where medical support may be at best rudimentary) that’s a real concern.  No one debates that transgender people as a group have unique medical needs, and while experts may differ on the scope, cost, and implications of those needs, I think it is unlikely the courts (and especially the Supreme Court) will second guess judgments about medical fitness made by military authorities, to include the President as Commander-in-Chief.

In fact, there has never been a constitutional right for anyone and everyone to serve in the armed forces.  Barring patriotic and talented transgender troops from uniformed service because of their medical situation may be considered by some as poor social or even military policy, and many may also view it as unkind or inconsiderate to those wanting to serve, but from a Constitutional perspective, it is permissible.

Lots of patriotic and talented people who want to join the military can’t.  In fact, a whopping 71% of the 34 million Americans in the 17-24-year-old age group are ineligible for service for a variety of physical, mental, educational and behavioral reasons (and, according to the Wall Street Journal, “that doesn’t even include those turned away for tattoos or other cosmetic issues.”)  And, of course, there are also what might be called “status” disqualifiers (which might be legally intolerable in a civilian setting) such as the military’s maximum (and minimum) age limits as to who can join. .

The most common medical disqualifier?  Obesity.  (Actually, there are a myriad of additional medical reasons that may render someone ineligible to serve, including such things as asthma, allergies, urticaria, various forms of arthritis, cardiac conditions, inflammatory bowel disease, heart abnormalities and, as we’ll discuss below, diabetes.)

Is anyone suggesting that the Constitution requires, for example, that the military induct obese volunteers (or anyone else with particular medical needs), or to use that the military resources to try to solve their health issues so that they and other members of the public can become qualified to join?  I don’t think so.  The military has many responsibilities, but fixing a global public health crisis is not among them.

Thus, it’s simply factually and legally incorrect to assume that transgender people are similarly situated to gay men and lesbians who want to join the armed forces.  Gays and lesbians never required (or, to my knowledge, demanded or even expected) the multi-million-dollar medical architecture the RAND report (that Mr. Paradis cites) says transgender troops need.  (And some say the real cost is “billions over ten years.”)

To the contrary, gay men and lesbians always argued they would meet all physical standards.  The litigation – and subsequent policy change (the Supreme Court never addressed the issue) – was about their sexual orientation, not their health.  Put another way, it’s important not to assume, as Mr. Paradis seems to do, that the respective statuses are coterminous because they aren’t.  According to medical authorities, one’s “internal sense of…gender is not the same as [one’s] sexual orientation.”  In short, experts say that being transgender is “not the same as being gay/lesbian.”

The distinction matters as it appears that transgender people typically need an ongoing regime of medications and/or other medical support because of their transgender status (see here, here, and here).  I’m not aware of any authority that establishes a constitutional right for anyone to serve in the armed forces where there are authentic, ongoing health issues.

Sure, there are certainly some individual transgender people who are physically able to serve effectively with few or even no special requirements.  But policies for an organization as large and multifaceted as the military must be standardized and efficient – especially in the midst of trying to fight what some describe as “five wars.”  Consequently, they are normally built upon reasonable expectations for the whole based on collective data.  Concessions cannot always be made for individuals.  As the Supreme Court noted in Burns v. Wilson:

[T]he rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment.

That principle would seem to be even stronger in situations where the individual is not yet “in the armed forces,” but only aspiring to be.  For example, there is an 85-year-old marathon runner who is “so fast that even scientists marvel,” but I don’t think that the courts would therefore require the armed forces to dispense with age limitations and mandate – as a matter of constitutional right – inducting any octogenarian who wants to join.

I very much doubt courts would – or should – force the military to expend resources in the midst of ongoing overseas conflicts in the hopes of finding the rare exception to the norm for octogenarians (which, I would suggest, includes very few speedy marathoners!).  I believe the courts would allow the military to make an across-the-board determination that octogenarians are ineligible to join, notwithstanding that a few might actually be fit enough to serve.

And not all the medical issues facing transgender people are physical.  According to Caitlyn Jenner, the transgender former Olympic gold medalist (and perhaps the nation’s most visible transgender personality), the mental health issues are quite formidable.  About a year ago she said that “probably the bigger issue is the mental side because we have tremendous suicide rates… — it’s off the charts.”  (Emphasis added).

Ms. Jenner’s comments are validated by research.  A 2014 study found that transgender youths had “a twofold to threefold increased risk of depression, anxiety disorder, suicidal ideation, suicide attempt, self-harm without lethal intent, and both inpatient and outpatient mental health treatment.”  Similarly, the Williams Center at UCLA’s Law School found that the “prevalence of suicide attempts among [transgender people] is 41 percent, which vastly exceeds the 4.6 percent of the overall U.S. population who report a lifetime suicide attempt, and is also higher than the 10-20 percent of lesbian, gay and bisexual adults who report ever attempting suicide.”

I believe the courts, without necessarily agreeing with the policy (and fully appreciating that the American Psychological Association says that transgender status is not itself mental disorder) would still nevertheless not require – as a matter of constitutional entitlement – the induction of transgender volunteers given the undisputed statistics as to their very significantly increased risk of suicide.  It’s hard to see how the judiciary could rationalize adding the additional burden of this extraordinarily vulnerable population to an institution like the military which already suffers a high suicide rate.

Ms. Jenner also points out that while she was able to get high-end medical care, it is not easy to find. She explains:

The medical profession in general doesn’t understand it – and I understand that. They don’t teach it in college. You’ve got to kind of learn it on your own. There are specialists out there like in Philadelphia, like in LA, that are so far ahead of everybody else…. I’ve always gone with medical professionals who are very good in this area, who have worked with other trans people.  They have a lot of experience. But that’s not the case for most doctors.  Maybe this is the first time they’ve seen anybody who’s trans.

Again, she seems to have her facts right.  The Mayo Clinic reports that “[m]ost health care providers have had little or no formal training in addressing the needs of [transgender] patients.”  While “[n]ot all transgender people suffer from gender dysphoria,” those who do can have complex medical challenges.  The Mayo Clinic says that:

Patients with gender dysphoria may have coexisting mental health conditions, such as autism spectrum disorder, body dysmorphic disorder or eating disorders, which should be treated with standard psychological therapy and other appropriate interventions… Depending on the patient’s needs, referral to surgical or other specialties can occur, specifically including voice therapy; preventive gynecology care for transgender men; mental health counseling for patients, their families or both; and assistance with school, social and legal issues.

The need for – and paucity of – the necessary specialists the Mayo clinic describes is a genuine problem for the armed forces.  Keep in mind that one of the main purposes of the military’s medical standards is to ensure its members are “[m]edically adaptable to the military environment without the necessity of geographical area limitations.”  (Emphasis added.)  This means that service members ought to be physically ready to go anywhere, anytime without the need for specialized, hard-to-find medical support.

As we’ve seen since 9/11, military personnel in every career field can find themselves in some of the most remote and dangerous places on the planet.  In many of these locations medical support is, of necessity, provided by medics and other non-physicians whose training understandably focuses on the injuries and maladies most likely to be suffered by the vast majority of troops, not the less than 1% of the force that is transgender and needs the specialist care that is, as Ms. Jenner advises, apparently uncommon in the medical profession generally.

The alternative would be to geographically limit the assignments of most transgender servicemembers to places near these difficult-to-locate specialists.  This would virtually eliminate any possibility of their deployment to combat zones, something I want to believe everyone would find to be unfair. Mr. Paradis says that the Israeli Defense Forces (IDF) “deploy” transgender troops.  I don’t know his source, but the LA Times said that as of 2014, the IDF had just five transgender troops, and would continue to accept them as conscripts.

But the IDF only defends Israel and, consequently, almost never deploys much beyond a relatively short driving distance from its borders.  The U.S., on the other hand, is not a conscript force and has world-wide obligations to defend a quarter of humanity.  To do so it has over 200,000 troops stationed in 177 countries, and not all of them have the kind of medical specialists that Ms. Jenner says are found in Philadelphia and Los Angeles.

This is another of the problems that those who champion the deployability of transgender troops don’t seem to really appreciate.  It is challenging enough to try to exploit economies of scale and scope to support those cisgender troops (who comprise fully 99% of the force) who might deploy needing some common medications or other minor medical support, let alone attempting to sustain at truly austere locations the very unique medical needs of less than 1% of those in uniform.  Some claim that the necessary medications have been sent “downrange” to benefit the currently serving, but that is a rather different question than whether the Constitution requires inducting people needing medications at all.

Again, the question is whether it is an unconstitutionally arbitrary decision for an organization whose “primary business” is – the Supreme Court tells us – “to fight or be ready to fight wars should the occasion arise” to not induct persons with unusual and potentially very complex medical requirements?

It is true, as you might expect, that there are people who enter military service heathy but who develop medical conditions that limit their utility and/or deployability.  Given the investment already made in their recruitment and training, the military does not automatically discharge such troops, but rather tries to make the best of the situation to find a way that those no longer worldwide-qualified can continue to productively contribute.

It doesn’t always work. If that becomes the case, they will not be “dropped from the rolls” as Mr. Paradis thinks.  (That is a rarely-used statutory authority applicable only to certain commissioned officers under circumstances not relevant here.)  Rather, military personnel found medically unsuitable for further military service will either be medically discharged or disability retired.

Obviously, policies about the treatment of those who develop medical limitations while already serving are – and ought to be – different from those applicable to persons who have not yet joined and in whom the government has not yet expended scarce resources.  Just because the military doesn’t automatically discharge people who can’t do everything it might like, such discretionary decisions would not justify the courts imposing upon it the gross inefficiency of bringing people into the armed forces with already known medical issues like those associated with transgender persons.

What about experts who would say that at least some transgender troops can (and do) serve professionally in many situations with minimal medical support?  A court could find their views interesting and worth considering, but they are not – constitutionally – necessarily dispositive.  Recall that in Goldman v. Weinberger there was expert testimony to the effect that making an exception to the military’s then-existing prohibition on wearing religious garb with a duty uniform would be “desirable and will increase morale by making the Air Force a more humane place.”  However, the Court said:

[W]hether or not expert witnesses may feel that religious exceptions to AFR 35-10 are desirable is quite beside the point.  The desirability of dress regulations in the military is decided by the appropriate military officials, and they are under no constitutional mandate to abandon their considered professional opinion. (Emphasis added.)

Wouldn’t similar logic apply here?  And maybe with even more force because it involves a military determination of physical requirements?  Like it or not, any President, as Commander-in-Chief, is the nation’s most important “military official,” and it’s unlikely that the Court would interpose its judgment in this area, even were it philosophically disposed to do so.

To support his view, Mr. Paradis cites (as noted above) the RAND report commissioned by the Obama administration.  That report admits to a surprising variety of medical, personnel and other challenges associated with transgender troops, but chooses to minimize them (and not evaluate the cost other than to estimate that for medical care alone).

RAND’s conclusions should be evaluated, but the assessment of the relative importance of various military factors by civilian employees of corporation may differ from that of military officials who have the legal responsibility for warfighting as others do not.  Curiously, the data on which the RAND report relies is frequently drawn from foreign militaries, and from studies involving gays and lesbians, apparently assuming – erroneously in my view – that there is little difference between that group and transgender status.  (As already discussed, medical experts say that being transgender is “not the same as being gay/lesbian.”)

At one point, however, RAND does seem to grudgingly recognize that there may be a problem with its methodology:

Existing data also suggest a minimal impact on unit cohesion as a result of allowing transgender personnel to serve openly.  However, we caution that these results rely on data from the general civilian population and foreign militaries, as well as previous integration experiences in the military (e.g., gays, lesbians, women), which may not hold for transgender service members. (Emphasis added.)

How the civilian population may deal with a particular issue simply cannot be presumed to transfer to the military. The Supreme Court has repeatedly said that the “military is, by necessity, a specialized society separate from civilian society” and that the military establishment functions ”wholly different from civilian patterns.”  As the Court said in Parker v. Levy, “the differences between the military and civilian communities result from the fact that it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.” (Internal quotation marks omitted).

Moreover, are foreign militaries as identical to the U.S. military as RAND assumes?  Of the four foreign militaries which permit transgender troops to serve openly that RAND says they focused upon – Australia, Canada, Israel, and the United Kingdom – only one (Britain, #6) was categorized in the top 15 of the world’s most powerful militaries.  The rest trailed the U.S. (#1) at a considerable distance (Israel, #16, Canada, #22, and Australia, #23).  Would the courts require the U.S. military to emulate the practices of foreign militaries that are significantly smaller, have fewer deployments, have a far more modest set of strategic demands, and – perhaps most importantly – are not as militarily powerful as that of the U.S.?

All of this is to say, that courts are unlikely to say that military official must “abandon their considered professional opinion” to the views of civilian, corporate employees.  Consider what the Supreme Court said in Gilligan v. Morgan:

[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability.

Congress, however, is very different.  For example, following Weinberger, Congress passed legislation which essentially overruled the case and limited the military’s ability to bar expressions of religious belief in dress and appearance.  Indeed, in the final days of the Obama administration commanders were told they could “grant accommodations to servicemen and women who wear beards, turbans, or hijabs for religious reasons.”

I believe that then President Obama had the authority to make that call.  Similarly, I believe that Congress, if disposed to do so, could constitutionally legislate a health exception for transgender people that would overrule President Trump’s proposed ban.  In other words, Congress could require the military to do whatever it took to provide whatever medical support wherever and whenever transgender troops need it,

But, let’s ask ourselves this: would that really be fair to the citizenry writ large or, pragmatically, a prudent assessment of litigation risk?

Along this line, the New York Times reports that Secretary of Defense Jim Mattis “has not been a major proponent of allowing transgender people to serve in the military, in part because medical accommodations, including hormone injections, could open the Defense Department to claims from other people not allowed to serve, like Type 1 diabetics, who also need regular injections.”

Persons with diabetes constitute only one category of the many that currently render ineligible for military service tens millions of people, some of whom (thousands?) might want to sue if an exception is made for transgender troops who require a similar level of medical support.

Courts are generally not indifferent to the flood of litigation a decision can cause, and I don’t think they would be here.  The potential deluge of claims, and the burden that could put on an armed force fighting overseas wars against ruthless terrorists while also confronting existential threats from Russia, North Korea, and elsewhere, would – properly – be serious considerations for the courts.

None of this is to suggest that transgender people (or any other group that has disqualifying medical circumstances) cannot or should not serve in their country’s defense establishment.  They could  contribute as one of DoD’s 742,000 civilian personnel.  In addition, there are 800,000 jobs in the defense industry where they can serve.  Some might even find a place in uniform in state defense forces (which, unlike the National Guard, have no connection with DoD and are not under the President’s control).

Clearly, there are plenty of ways for talented and patriotic Americans, including those who are transgender, to serve our national security beyond the uniformed ranks – and we need them to do so.

I also firmly believe that currently serving transgender troops must be treated with dignity and respect (as the President’s tweet did not).  Every effort should be made to allow them to continue their service on the same basis as others currently serving who require a similar level of medical support.  If a reasonable accommodation just isn’t possible, they must be treated with exactly the same respect as everyone else whose health precludes further service, and provided with precisely the same benefits.

In a democracy, we can, should, and must debate the wisdom (or lack thereof) of any policy.  But it does no one any good in this debate to wrongly suggest that the issues associated with the military service of gays and lesbians are virtually indistinguishable from those of transgender people, or to indicate that the Constitution mandates something that it plainly does not.

But like we say on Lawfire, gather the facts, consider the arguments, and decide for yourself!

 

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