Trangender Policy And The Evil SCOTUS

Without explanation, the Supreme Court by a 5-4 split lifted two of three stays of Trump’s ban on trangender people serving in any capacity in the military.

The Supreme Court on Tuesday took a dramatic step toward reviving President Donald Trump’s ban on transgender troops.

Previously, lower courts had placed injunctions on the transgender ban, stopping the Trump administration from enforcing it.

On Tuesday, the Supreme Court put a hold on some of those injunctions. But because one lower court injunction was not part of the cases the Supreme Court put a hold on, the ban can’t be enforced just yet. It is likely, though, that soon the remaining injunction will be put on hold as well.

The military sought no such ban. Apparently, Trump didn’t bother to ask or tell them before impulsively twitting about it. As a matter of sound policy, it’s not merely archaic, but inane.

Defense Secretary Chuck Hagel said that the military should “continually” review its prohibition on transgender people in the armed forces.

“Every qualified American who wants to serve our country should have an opportunity if they fit the qualifications and can do it,” Mr. Hagel said in an interview.

Some still see transgender people as “icky” or “unnatural,” which has nothing to do with anything. That some will have surgery, paid for by the military budget, rankles people who get hinky about transgender folks, but the cost is trivial. There aren’t that many people involved, but for each of them, it’s a big deal.

You don’t have to be transgender. You don’t even have to like them. It’s not up to you whether someone else is the way you want them to be. You live your life and let them live theirs. The only issue, as Hagel notes, is whether they are qualified to serve.

All of this comes as a matter of policy, and we’re well beyond the point of appreciating Trump’s inability to grasp the nuance of sound policy, his unwillingness to learn, and his refusal to listen to those who actually know stuff, despite his knowing more than the generals. Pandering to the worst instincts of his base isn’t exactly a surprising way for Trump to go.

But isn’t the judicial branch of government there to protect us from the dumb guy? What about Equal Protection? Why would the Supreme Court reverse the courts below and lift the stay?

One American Civil Liberties Union lawyer called the new and ostensibly improved transgender ban “transphobia masquerading as policy.” And a former naval aviator, reacting to the Supreme Court’s latest move, wrote in a Times op-ed that her career in the armed forces was just dealt a punishing blow.

The justices provided no explanation for their decision, which puts on hold rulings that have been in place for well over a year and that have allowed transgender troops to continue to serve openly under a directive by the Obama administration that was years in the making.

It wasn’t too long ago that the military prohibited gay, as well as transgender, people from serving in the military. There were facially strong rhetorical arguments against it, even though they were already serving without incident, but kept their heads down. These aren’t any different than the myriad rhetorical arguments used today for a wide variety of radical changes. When it came to the military, the fears of disruption proved to be bunk. It was arguably a huge problem. It was, in reality, no problem at all.

The change, however, did not happen because Congress passed a law. It happened because President Obama had a pen and a phone. When he was president, he got to sign Executive Orders. But he’s not president anymore.

It is difficult to parse cryptic orders that contain no reasoning. But this latest move suggests that Chief Justice John Roberts Jr. and the justices on the Supreme Court’s conservative wing are inclined to bend to the whims of an administration that often sets out to harm people by executive fiat, only to get challenged in court and later complain that judges are standing in the way of government policies.

Without an opinion explaining its “cryptic order,” the New York Times comes to the only conclusion that comports with its policy preferences: the partisan hacks in the conservative wing of the Supreme Court are bending to the whims of this evil president. Or, they could have applied Occam’s Razor and concluded that the policy implemented by Executive Order can be undone by Executive Order, whether it’s good policy or not.

The cynical view of the Supreme Court, promoted whenever the Court reaches a decision that fails to produce a progressive outcome, is that they aren’t independent jurists but slaves to their master, Trump. How that fails to square with the fact that their decisions occasionally go the other way is left unanswered, as narratives no longer need to accommodate facts. When the ruling is wrong, the Court is reduced to tribalism. Who said projection wasn’t fun, NYT?

There are concerns about how the normalization of gay and transgender people is happening in an overheated, and underthought, debate. When it becomes too cool, too edgy, for impressionable people to become something they’re not, bad choices can happen, especially when people are nudged rather than left to make their own serious decision, and are later regretted. No one wants to hear this, as it, too, cuts against the narrative.

It’s no more cool to be transgender than not. If it’s what you are, then be it. If it’s not for you, then don’t, but let anybody who is alone. It’s none of your business. And if they can serve in the military without issue, then who cares if they’re transgender or have green eyes?

But leave the Supreme Court out of your narrative. The judiciary isn’t the body to construct and implement public policy, good or bad. Addressing these questions belongs to Congress, and if the president is going to circumvent a resistant Congress as Obama did, then be ready for the next president to undo it. If the next president lacks the authority to undo it, his predecessor lacked the authority to do it in the first place.

The problem isn’t that the conservative wing of the Court is comprised of partisan hacks, but that they are judges and you don’t like their decision. Hey, lots of people don’t like things, but that doesn’t change the Supreme Court into the final arbiter of your preferred executive public policy, even if it’s the right policy.

14 thoughts on “Trangender Policy And The Evil SCOTUS

  1. wilbur

    I, for one, eagerly anticipate a whim-bending frenzy by SCOTUS. A regular mania … a craze of whim-bending.

    I suspect I’ll be disappointed. Or as my little great-niece calls it, pissappointed

  2. Thrown_out_of_the_Kremlin_for_Singing

    RE: The two trans-people, “You seem to be easily impressed.”

    Not at all. The two trans-people I knew would impress anyone.

    The female-to-male (first Rachel, now Ray) was a very successful lawyer in a city which was very competitive for lawyers. She graduated nearly top of her class from Yale Law School.

    The male-to-female (first Phil, now Phyllis) was a computational protein-chemist who wrote the software which enables us to convert a mouse antibody into a human-like antibody suitable for use as a drug in humans. This software enabled invention of a whole new class of drugs, including this one:

    [Ed. Note: No.]

    and this one:

    [Ed. Note: No, too.]

  3. Kirk A Taylor

    To be clear, those were who have served who are not irrationally anti trans are concerned about one more thing that will remove someone from doing their job for an extended period of time, thus requiring someone else to pick up the slack. Whether this is a concern that is worthy of denying service is a decision for military commanders to make. The fact that you can’t say that this is the important criteria due to it bringing up the same issue with women and pregnancy only clouds the issue further.

  4. B. McLeod

    I think the Vox article involves some characterizations beyond actual facts, and carelessly conflates the original Trump order with the current one, which: 1) only applies to [Ed. Notes] with a history or diagnosis of “gender dysphoria” and 2) includes exceptions. So, terming it a “ban” on “serving in any capacity” misstates what the administration did and misstates what was before the Court.

    Note that even as revised in current political medicine, “gender dysphoria,” though no longer called a “disorder” is still included in the DSM, which is used to define the diagnostic criteria for mental illnesses. Whether or not one assumes it is fine for the impacted persons to be whatever they are, it does not necessarily follow that it is also fine for them all to carry arms in the military.

    1. SHG Post author

      Had those been the details at issue in the decision, they would be relevant. But since there was no merits decision, it’s irrelevant to what happened here. I don’t really blame German Lopez, as he’s not a lawyer and it was likely damn hard to remain even a little bit neutral.

  5. Julia

    A quick question. Which transgender is predominantly affected, born male or born female? I couldn’t find an answer behind the outrage noise, but if I got the calculation right, my estimate is around 90% being female born, mostly very young.

    I don’t think anybody cares about them, neither Trump nor the army. Teenage girls and young women are brainwashed that if they are interested in stereotypically masculine things (like military service) and/or attracted to females, they must take testosterone to become “men”. This treatment isn’t FDA approved and is likely to have long term consequences for their health, one of which is permanent sterility. It’s clear that the army doesn’t give a rat’s ass about soldiers’ long term health as long as they can be deployed right now. The medical industry wants their money, too. But if this ban, even unintentionally, can save some of those girls from making bad decisions, it’s a good thing.

    1. SHG Post author

      I have no idea if you’re correct about testosterone, but it’s irrelevant to this post and there’s no way I’m going to let this post devolve into war over the efficacy of the medical treatments. This is a great argument for reddit, not here.

    2. B. McLeod

      “Banning” anyone from the military could keep them “from making bad decisions,” or at least one bad decision. But the “Army of One” thing didn’t work so well.

  6. Weebs

    The only issue with transgender military service is deployability. If the treatment for a transgender service member takes them out of action, so to speak, I can see not allowing them to serve.

    But if someone joins after transitioning, there’s really no reason not to let them serve.

    I was in the military prior to DADT and served with some gay dudes. Back then you could be discharged just for coming out of the closet. They kept it to themselves and no one gave a shit as long as they could do their jobs.

    1. B. McLeod

      Numerous studies and articles have noted very high rates of suicide and attempted suicide in the [Ed. Note] population, as compared to the general population. Notwithstanding the recent acceptance of “transitioning” as the treatment du jour, “transitioning” has not been effective in resolving the suicide issue.

      When gender identity disorder still existed, one study specific to treatment in the VHA system found significantly higher incidence of people with the GID diagnosis in the VHA system as compared to the general population (suggesting that [Ed. Notes] have always been well-represented in service populations, albeit not ‘openly’). This same study showed that, for the people with GID diagnoses within the VHA system, suicide rates were 20 times higher than for veterans in the VHA system generally.

      It is questionable policy to sign up and deploy recruits from a population with these statistical markers, although the military leadership has clearly shown a willingness to do it. Obama wasn’t doing these folks any favors with his grand-standing. Trump, though perhaps motivated by prejudice, may be slowing down a slaughter that needs to be put in stasis and studied for other reasons. The Court may be motivated by anything, given absence of stated reasons for its action.

  7. Casual Lurker

    Frankly, there are times when an issue is difficult to navigate. By ramping up the stakes, it sometimes (but not always) helps to bring a given issue into focus.

    Long ago, a mentor of mine tells of sitting on a screening panel, where they had to asses military personnel that already held a high-level security clearance, for an advanced, specialty, “weapons components” clearance. Unsaid, but presumed, was the “components” were for nuclear weapons.

    At the time, even though the military had an outright ban on LGBTQ personnel, there were occasional reports that a short-list candidate was suspected of being Gay, and were routinely removed from consideration. I’m told the practice continued well after the outright ban was lifted in 1993.

    I inquired as to why Gay’s were considered a higher security risk. He replied that studies, both published and unpublished, had shown that, as a percentage of population, Gays were far more likely to be suffering from emotional and/or personality disorders, making them unsuitable for certain mission-critical positions.

    Mind you, there are often good reasons for those disorders. Like growing up in an unapproving environment, with all that entails. However, the military doesn’t care how those disorders came about. The military doesn’t exist to help you work out your issues. It’s there to fight the nation’s wars. It cannot afford to have unstable personnel handling nukes or nuke components.

    Of course, not every Gay person suffers from a discernible personality or related disorder. But why risk the possibility that a disorder was missed during screening, when there are plenty of military personnel that are not suspected of being Gay. It’s one more box that you can check-off.

    The above ignores that it’s more likely you’ll miss a disorder from the larger pool of presumed non-Gay personnel, even if it’s considered less likely they’re afflicted, to begin with. With that said, the policy seemed ripe for revision, sooner, rather than later.

    Then came along Bradley (now Chelsea) Manning. While some consider her a “whistleblower” to be cheered on, others consider her a traitor, to be strung up. Leaking documents to Wikileaks “proved” the unsuitability of LGBTQ personnel for sensitive positions requiring a security clearance. And so the clock is again reset to an earlier point in history.

    Quiz: Pete and Repeat were on a boat, and Pete fell off, who was left? (Hint: this is an infinite recursion loop).

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