This article is cross-posted at the author’s Substack.
In its first four weeks the Trump administration has levied a barrage of attacks on trans people. It has rescinded all federal policies that gave trans people protection from discrimination, endangered trans women prisoners by reassigning them to carceral facilities based on their sex at birth, revoked policies that extended respectful treatment in securing identity documents, purged information about trans people from public-facing federal resources, threatened federal grants and funding recipients that support trans rights, and begun a systematic effort to obstruct access to gender-affirming medical care. It is an assault of devastating magnitude. The administration is also reprising an effort it undertook in the first Trump term by reintroducing discrimination against trans people into the U.S. military. But this new policy is inflicting a different order of harm. To understand the nature of that harm, it is necessary to map out the progression of trans military service over the last 10 years.
In the final months of the Obama administration, the Department of Defense repealed the previous policy that had banned trans people from serving openly in the military and began the process of implementing a policy of equal treatment. Unlike the “Don’t Ask, Don’t Tell” statute that prohibited open service for lesbian, gay and bisexual people until its repeal in 2010, the anti-trans policy was purely executive in nature and so did not require action by Congress. President Barack Obama and Secretary Ash Carter began by removing the barriers for current trans service members and laid out a process for accession of new recruits. Those policies recognized the right of trans people to serve in their proper gender and authorized coverage of gender-affirming medical care so long as the service member had already undertaken the process of transitioning and lived in a stable fashion in their true gender for 18 months.
Several months after Donald Trump became president for the first time in 2017, Secretary of Defense James Mattis put the accession policy on hold. Shortly thereafter, Trump issued a tweet proclaiming a total ban on service by trans people. The White House hastily turned the tweet into an executive policy with instructions to DOD to implement the change, and DOD subsequently put together a formal set of regulations supported by a policy study. DOD purported to justify the discrimination against trans service on practical grounds—the cost of gender-affirming medical care, housing and privacy concerns, limitations on flexibility in deployment—along with an invocation of the unit cohesion rationale previously used to justify LGB discrimination. It also provided some accommodation to trans service members who had begun serving openly under the Obama administration policy. There is a lot to say about the merits of those purported justifications for anti-trans discrimination but the regulations, unlike the tweet that occasioned their adoption, had the form and trappings of traditional policy development and consequently received some deference from federal courts in the constitutional challenges that followed.
When Joe Biden became president, he moved swiftly to revoke the Trump policies and put back in place the policy of open service developed under Carter during the Obama administration, including full implementation of the accession process. Throughout the course of Biden’s time in office from January 2021 to January 2025, the military invited trans people already serving in the armed forces to do so openly and invited new recruits to join the service free from anti-trans discrimination. Trans people accepted that invitation and have been serving successfully that whole time. I am aware of no evidence that trans service members imposed any disproportionate costs on the military, complicated or impeded deployment decisions, or otherwise introduced any problems. They simply contributed their work to the overall mission.
The nature and scope of the harm imposed on trans people in the military by this new executive order can only be understood against the backdrop of that history. The edict Trump issued on Jan. 27 makes only glancing reference to practical considerations with no serious attempt to ground the shift in policy in those concerns. Instead, it describes trans people as disordered, of poor character, and inherently unfit to serve, and ascribes to them adherence to a belief system of “radical gender ideology” that it proclaims to have no place in the military. The edict bypasses any formal policymaking process, instructing the Secretary of Defense to implement its various commands within 30 or 60 days, and thus makes no show of engaging with the record of success trans service members and their units accumulated during the four years of the Biden administration. It makes no accommodation at all for trans people already serving openly in the armed forces, telling service members they will be summarily discharged for abiding by the official policies under which they previously worked. And while it is not yet clear on what terms separation from service under this edict will occur, the derogation of individual character shot throughout the order—accusing all trans people of failing to lead an “honorable, truthful, and disciplined lifestyle” and trying to force others to “honor” the “falsehood” of their identity—strongly suggests trans people will receive other-than-honorable discharges that would deprive them of the military benefits they have earned and seriously compromise their ability to find civilian employment. All of this is punishment for adhering to the standards and rules the military itself set forth for trans service members just four years ago.
These needless cruelties in the new policy will almost certainly play a role in the constitutional challenges that have already been filed. A major question in those challenges will be whether the policy is motivated by a bare desire to harm an unpopular group. The Supreme Court has repeatedly held animus of that kind to be an illegitimate governmental interest. If the federal courts find that principle to be equally applicable to military personnel policies—an untested question before the Supreme Court—then the executive order provides ample basis for a finding of unconstitutional animus under the equal protection component of the Fifth Amendment. The disregard for the rich body of evidence accumulated during four years of open trans service; the abandonment of any normal policy development process; the arbitrary punishment of service members with discharge and termination possibly under other-than-honorable conditions for following the rules that were previously in place with no accommodation for reliance on those rules—all these features of the policy combine with its ad hominem nastiness to make a strong case that this edict and its implementation are not merely a shift in personnel policy but a form of performative public abuse of a politically vulnerable minority. The fact that this policy is just one part of an overall assault on trans people in all aspects of their lives obviously serves to strengthen that case.
The edict’s singling out of “radical gender ideology” and ascription of that belief system to all trans service members may also provide an independent basis for challenging the policy under the First Amendment. It offends core free speech principles to punish someone for their presumed ideological beliefs. When government ascribes beliefs to a class of people, equal protection and free speech analysis overlap. Firing or excluding a woman from a government institution because she is a woman is an equal protection problem. Firing her because you assume she is a progressive and you want to punish progressives is a Speech Clause problem. Firing a woman because you believe all women embrace the progressive beliefs you want to punish implicates both constitutional principles. Insofar as this executive order seeks to purge trans service members both because they are trans and because this administration ascribes to all trans people a set of ideological beliefs that it hates, it will need to answer to the First Amendment as well as the Fifth.
The effort to purge all trans people from the military is not merely a repeat of the struggle that played out during the first Trump administration; it is an attack of a different order. The government appears to be going out of its way to inflict harm with little effort at serious policy development to justify its actions. Trump’s first Department of Defense received significant deference from the federal courts when responding to constitutional challenges. This edict may encounter a very different reception.
(Editor’s note: This article is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions.)