Caitlyn Jenner can use President Trump’s bathroom, but s/he cannot serve in his military. In the modern day equivalent of a fireside chat, the President tweeted, “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.” The President’s transgender ban immediately created a firestorm, with almost triple the number of normal retweets and numerous articles and statements about the issue.
The transgender ban is controversial; it is also constitutional. As Commander in Chief of the United States Armed Forces, the President has broad power to control the U.S. Military. For example, President Bill Clinton’s “Don’t Ask, Don’t Tell” policy stayed on the books until December 2010. More to the point, President Barack Obama kept the transgender ban in place for nearly all of his Presidency.
Unsurprisingly, the ACLU opposes the ban. Expect them to press the issue until a federal judge somewhere, and thereafter the Ninth Circuit, finds a right to gender expression in the Constitution. However, given Supreme Court Justices Ginsburg and Kennedy are in their eighties, the ACLU had better move quickly. President Trump’s next pick will likely swing the Court away from finding rights that didn’t exist a year ago.