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The unclear legal impact of Trump’s ban on transgender people in the military

Wednesday morning, President Donald J. Trump posted three tweets from his personal Twitter account saying that the U.S. government “will not accept or allow transgender individuals to serve in any capacity in the U.S. military,” the implications of which are still unclear from a legal perspective, said Northeastern law professor Libby Adler.

The tweets read in full: “After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you”

‘A complete red herring’

The tweets cite prohibitively-expensive medical costs for transgender people in the military. Two scholars of women’s, gender, and sexuality studies—assistant professor Moya Bailey and professor Suzanna Danuta Walters—said however, that the argument that medical care related to gender identity is more expensive than other medical care is more the result of misunderstanding trans issues than real costs.

“People have a false understanding of who trans people are,” Bailey said. “This idea that they’re threats, that their confirmation surgeries are costing taxpayers so much money doesn’t address the real issue of how trans people are perceived.

“These surgeries are similar to surgeries that cis-gendered people have all the time that are being understood as costly because a trans person is getting it,” Baily continued. “There’s a way that this care is being attacked and being seen as extraneous when they’re as medically necessary for trans people as a surgery for a cis person.”

Last year, the RAND Corp., a nonprofit, nonpartisan research organization released a study that assessed the implications of allowing transgender personnel to serve openly—part of research commissioned by the DoD and conducted before the Obama administration lifted the longstanding ban against transgender people.

The RAND study showed that there were an estimated 1,320 to 6,630 transgender servicemembers in active combat as of 2016, though not all would seek gender transition-related surgery. The annual cost for those who would seek surgery would be between $2.4 million and $8.4 million, or a 0.04 to 0.13 percent increase in healthcare expenditures for the military.

“There’s just no evidence that medical expenses for trans people are greater than any other medical expenses,” Walters said. “That’s a complete red herring.”

Like Bailey, Walters said the larger issue at play was public attitude toward transgender people. “On the face of it, this is discriminatory and extremely regressive,” she said.

‘Presidential policymaking by tweet’

The legal implications of these tweets, meanwhile, depend on how they’re interpreted by the Department of Defense, Adler said.

“I’m not sure anyone knows yet, what the legal impact of his tweets are,” she said, referring to Trump. “I’m not sure how you constitutionally contend with a tweet.”

Whether or not this will be interpreted by government officials as a policy memorandum remains to be seen. “My instinct is that if the DoD implements this, it’s a policy,” Adler said.

Many civic organizations issued statements Wednesday hinting at an onslaught of litigation. Adler suspected such suits could be based in sexual discrimination arguments.

If the DoD does implement a ban on transgender soldiers, then anyone in the military who has already identified as transgender would likely be kicked out, Adler said.

White House spokeswoman Sarah Huckabee Sanders told reporters on Wednesday that she could not say what the impact might be on transgender people currently serving in the military.

“It’s a real bait and switch to tell people, ‘Go ahead and come out,’ then once they’ve done that, realize they’ve revealed themselves to a hostile authority,” Adler said.