The American Civil Liberties Union (ACLU) filed a lawsuit today against President Trump, Secretary of Defense Mattis, and other members of the Trump administration over the President’s decision to bar transgenders from serving in the United States Armed Forces.
The 39-page suit alleges that Trump’s decision violates both the Fifth Amendment’s Equal Protection and Due Process Clauses and it seeks to bar the President’s directive from remaining in place.
The ACLU is representing six current members of the Armed Forces who identify as transgender. The suit alleges that the service members suffered irreparable harm stemming from a violation of their Constitutional rights, which occurred when the President called for a ban on both future enlistees and current service members who identify as transgender, and a bar on “necessary medical care.”
The suit argues that the directive is discriminatory against the plaintiffs based on their sex — a violation of both the Fifth and Fourteenth Amendments. Clause 141 of the suit reads as follows in regards to the Equal Protection Clause of the Fifth Amendment:
The Defendants’ actions of adopting, implementing, and enforcing each of the three policies in the Transgender Service Member Ban discriminates against the Individual Plaintiffs and other men and women who are transgender on the basis of their transgender status, which is independently subject to, and fails, heightened scrutiny under the Fifth Amendment.
a. Men and women who are transgender, as a class, have historically been subject to discrimination.
b. Men and women who are transgender, as a class, have a defining characteristic that frequently bears no relation to an ability to perform or contribute to society.
c. Men and women who are transgender, as a class, exhibit immutable or distinguishable characteristics that define them as a discrete group.
d. Men and women who are transgender, as a class, are a minority with relatively little political power.
The issue with the ACLU’s claim with regard to the Equal Protection Clause is that it deliberately blurs the line between gender and sex — one that the Left has a propensity to distinguish.
If the issue was specifically in regard to sex, then it would follow the lines of prior due process litigation that held issues of sex under intermediate scrutiny. Such scrutiny determines whether the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest. If it fails that test, then it violates either the Fifth or Fourteenth Amendments.
However, the issue of gender remains a hotly debated topic, where the line is often drawn not in intermediate scrutiny but rather on rational basis, which tests whether the law or directive in question is “rationally related” to a “legitimate” government interest. This is the lowest tier of scrutiny and it historically involves characteristics that do not come across as immutable or distinguishable.
If the Left’s logic toward gender holds, then gender is fluid and it is not entirely distinguishable as one would argue sex, race, ethnicity, and sexual orientation are (and would be classified as). However, the ACLU deliberately blurs that line and equates “gender fluidity” with the immutable characteristic of being born with either a penis or a vagina.
After making the Equal Protection Argument, the ACLU makes the classic substantive due process argument. This argument is summed up in Clause 146 of the suit:
The substantive component of the Fifth Amendment’s Due Process Clause includes not only the privileges and rights expressly enumerated by the Bill of Rights, but also includes the fundamental rights implicit in the concept of ordered liberty.
First of all, there is no “right” to join the military as the ACLU might claim. Second, the ACLU and other left-leaning legal groups continue to seek the creation of new rights that were not expressly listed by the original framers of the Constitution and the authors of the Bill of Rights. The same line of reasoning that created a “constitutional right” to contraception, abortion, gay marriage, and other “rights” is reaching its logical next step by creating the “right” for transgendered individuals (or any individuals) to serve in the military, thus continuing to undermine the Constitution and the rights that the Founding Fathers codified into our republic.
It is no surprise that the ACLU was going to move in this direction with Trump’s transgender ban. The question, however, remains whether the President’s legal authority to handle issues of the military is held to a higher standard than the seemingly frivolous lawsuit that was filed today.