US Supreme Court Lets The Trump Transgender Service Ban Proceed
And the political project of 'gender identity' is flagging
History will record that the downfall of the ‘trans rights’ agenda derived from the tension between the necessity for medical diagnosis on the one hand and a countervailing demand for de-stigmatization on the other. Being ‘transgender’ supposedly requires life-saving medical interventions, but also carries the stigma of a mental health diagnosis. Activists have resolved this dissonance through policy capture instead of making their agenda make sense. Their ideology is not supposed to make sense, it is meant to be obeyed.
Until now. The Pentagon will no longer be obedient to the blinkered agenda of gender identity ideology. This week, the United States Supreme Court reversed a lower court’s hold on Donald Trump’s executive order, allowing Secretary of Defense Pete Hegseth to proceed with the president’s ban on transgender medicalization in military service. “The Pentagon has estimated more than 4,200 active service members have a diagnosis of gender dysphoria which is the military's metric for tracking the number of transgender troops,” ABC News explains in their coverage (emphasis added). Americans can be excluded from enlistment for any other mental health condition than this one, why is it special?
Politics are the entire answer. “Advocacy groups have put the actual number of trans service members much higher, around 15,000,” ABC News adds. According to the activists, these extra imaginary transgender service members lack a diagnosis of gender dysphoria because they fear the stigma of mental illness. Thus the project of establishing ‘transgender’ as a class of human beings has always sought to democratize the sex-change franchise (‘trans joy’) so that anyone can be whatever they want, with or without a doctor’s help. The idea is called ‘self-ID’ and it is written into the so-called Equality Act currently proposed by Democrats in Congress.
Underlying the supposed right to self-identify as any gender, using laws that have yet to pass Congress, is a second, equally baseless argument that military service is itself a civil right. For the last seven months of the Obama administration and the entire Biden administration, ‘trans’ enjoyed a special privileged status that exempted it from other mental health diagnoses.
And like any special privilege, having it taken away feels like discrimination.
“By allowing this discriminatory ban to take effect while our challenge continues, the Court has temporarily sanctioned a policy that has nothing to do with military readiness and everything to do with prejudice,” said Lambda Legal and the Human Rights Campaign Foundation which are providing legal representation for the transgender troops.
“Transgender individuals meet the same standards and demonstrate the same values as all who serve. We remain steadfast in our belief that this ban violates constitutional guarantees of equal protection and will ultimately be struck down,” the foundation said.
But there is no equal protection guarantee of military service, no ‘civil right’ or ‘human right’ to wear a military uniform. The Pentagon can reject a prospective enlistee for any one of a thousand reasons, including a mental health diagnosis that requires permanent medicalization through ‘affirming’ hormonal treatments and/or surgeries.
As the Trump administration told the Court, the executive order applies to a diagnosis, not a class of person. Plaintiffs had argued in the lower court that the executive order violated the Constitutional guarantee of equal protection with a “de facto blanket ban on transgender service.” Justice Sotomayor, Justice Kagan, and Justice Jackson disagreed with the majority because they are advocates for the explicitly political project of establishing this new class of human being in law.
Without the Supreme Court’s intervention, the Trump administration told the justices, the district court’s order will stay in place while litigation continues in the 9th Circuit and, if necessary, the Supreme Court. That is, the Trump administration said, “a period far too long for the military to be forced to maintain a policy that it has determined, in its professional judgment, to be contrary to military readiness and the Nation’s interests.”
Reading Supreme Court tea leaves is hardly my vocation or inclination. However, I do pay close attention to what is happening in this area of law and policy. For example, the Court was very clear that its 2020 Bostock decision applied only to Title VII employment law, but the Biden administration chose to interpret the decision very broadly and apply it to Title IX as well. As a result, the Court is more sensitive to progressive legal shenanigans around ‘gender identity’ than it used to be. Context matters.
The more salient point, however, is that this is not the only policy front on which the tension between medicalization and de-stigmatization within transgender activism has unravelled the larger program. Yesterday, at the website where I write about these topics, I published an essay on the new “umbrella review” of “pediatric medical transition” literature issued by the Department of Health and Human Services. Using neutral language and objective criteria throughout, the authors have nevertheless produced a vital history of a gruesome, global scandal.
Scientific and medical ethics were compromised at conception in the committees that made organizational policy around ‘trans kids.’ Because doctors want insurance reimbursements, but activists demand to be de-stigmatized, ‘gender’ is treated like cancer rather than a mental health condition. A child who professes to have sad feelings about their gender will have those ephemeral feelings pathologized with puberty blockers, anti-cancer drugs used for off-label purposes.
Iatrogenic harms — injuries caused by the medical interventions, such as sterility and bone density loss — are intrinsic to the project, so the interventions have to be justified with extortionate threats of future self-harm. In fact the ‘treatments’ are the disease. Literally the only other area of pediatric medicine which justifies this level of harm to a child is actual cancer treatment. It will all eventually dissolve in litigation as the bill for the damage caused by ‘feelings cancer’ clinicians comes due.
In this case, however, the Trump administration is not arguing that ‘feelings cancer’ (i.e. gender dysphoria) does not exist in some adults who might wish to enlist, or who have already enlisted. The Trump executive order does not say that people with deep distress about their gender are bad, or un-American, or that they don’t have human rights.
A diagnosis of gender dysphoria indicates that such persons are deeply distressed and deserving of compassion. Rather, the Trump administration argues that ‘feelings cancer’ patients do not belong in uniform while they have their distress treated.
Lambda Legal on the other hand is pretending that ‘feelings cancer’ patients have an inherent right to serve in uniform, a right that simply does not exist. The Supreme Court is not moved by their argument because contrary to what social justice biglaw warriors seem to think, the Court has never actually recognized ‘transgender people’ as a ‘quasi-suspect class’ that would deserve special protections which are not given to any other group of people sharing a medical diagnosis, even for civilian purposes.
The Court majority does not seem likely to rule that presidents cannot exclude would-be enlistees for diagnoses which affect deployability. The case may end up returning to the Court in the future, in which case the majority might decide the question of what protections ‘trans people’ should enjoy as a class.
As noted, however, the politics have been shaped by a long-term struggle to bypass the diagnostic hurdle altogether, so that everyone can be anyone they want to be. That liberation project is ultimately incompatible with a mission-focused culture, for it requires every person in a given unit to participate in the unique mental health self-diagnosis of any single unit member at all times. No such ideology belongs in American uniform. It is poisonous to good order and discipline.
