Law prof.: Trans troops ban sure to spark lawsuit

Michael McDaniel
Retired Brigadier General Michael McDaniel, associate dean and director of Homeland Law at Western Michigan University Cooley Law School's Lansing campus, discussed President Donald Trump's ban on transgender people in the military. (July 26, 2017)

LANSING, Mich. (WOOD) — A veteran and law school professor questions whether President Donald Trump’s decision to ban transgender people from the military is constitutional.

Retired Brigadier General Michael McDaniel, associate dean and director of Homeland Security Law at Western Michigan University Cooley Law School’s Lansing campus, served nearly 30 years in the U.S. Army. He said he has seen an evolution of acceptance within the military as there are more women, minorities and gay people serving. He said transgender people would be the next group.

He said that the president’s decision not to allow transgender people to serve the military, announced Wednesday in a series of tweets, raises “some pretty big constitutional issues.”

“The federal law on sex discrimination may not cover transgenders,” McDaniel said. “We don’t know. Supreme Court’s never ruled on that.”

He said a class-action lawsuit on equal protection grounds under the 14th Amendment is inevitable.

But he said that could only be filed when there president has issued an executive order, which brings up the question of how the president is communicating decisions on social media and whether the courts would accept them as a statement of his intent instead of an executive order. McDaniel said the courts did that with the president’s tweets on the embattled travel ban.

“There’s a really interesting issue about the executive branch of government and whether you can even issue an order by tweet,” McDaniel said.

Trump cited financial burden when it comes to transgender medical costs, which McDaniel says isn’t an accurate depiction of the military price tag overall. He says studies have found transgender people are only a small percentage of the total armed forces.

“The cost is maybe $18 to $16 million. You look at the size of the defense budget, billions of dollars — that’s a drop in the bucket even if they decide to cover this type of medical cost and this type of surgery, which nobody has yet said that they will do so,” McDaniel said. “They could’ve said they’re not going to pay for reassignment surgery, but you’re welcome in the military. So I don’t think that one makes sense at all.”

He also said if the change applies to all transgender people in the military, officials would have to figure out a system to administratively separate them from the military.

McDaniel argued that a person’s gender shouldn’t affect how they would serve and the president’s decision goes against the Constitution.

“I mean the motto is e pluribus unum — out of many, one. … ‘Out of many’ suggests diversity not just of countries that came to the U.S. but I think of other backgrounds as well. So I think, as I said, everybody should have the right to serve in the military,” McDaniel said.

Coincidentally, Wednesday marked 69 years to the day since President Harry S. Truman signed an executive order desegregating for the military.