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Legal Questions Over Trump's Ban Of Transgender People In The Military


President Trump's declaration that the military will ban transgender individuals in any capacity was a stunner to Army National Guard Captain Jacob Eleazer, who transitioned from female to male.

JACOB ELEAZER: I feel very strongly about wanting to continue to serve. I think I still have things to give. Even if I can't continue serving in uniform, I still want to do something to contribute to the mission and support this organization that I've put so much of my life into.

INSKEEP: OK, so how does the president's announcement, made on Twitter, affect transgender individuals serving their country? Eugene Fidell is our next guest. He teaches military law at Yale University. Good morning.


INSKEEP: Can the president just plain order this as he seems to have done?

FIDELL: Well, he is the commander in chief. And he has broad power to make policy over military personnel matters. So the short answer to your question is yes. The other question is...

INSKEEP: Although, the reason that this was up for debate was President Obama wanted to do it but said to the Pentagon, think about it really hard; spend some months studying this. They decided to spend more months studying this. Can it just be changed without such a process?



FIDELL: The - there was a new - there was an election. And we have a new president.

INSKEEP: And now, what does this mean for the people who are currently in the military who are transgender? It's said that there are several thousand of them.

FIDELL: Well, those people are going to - first of all, we don't know yet. We don't, you know, quite what the break-in is going to be, quite what the implementing regs are going to be. At the moment, all we have is a tweet from the president. And we have a statement from the press secretary. So, you know, there are a lot of steps. The military's a highly developed bureaucracy. There are steps that have to be taken in order to get policy decisions implemented and down to the level where they actually affect conditions on the ground.


FIDELL: But a key question is what about the people who are already on active duty? And if there are people who are going to be thrown off active duty, that's going to open a hornet's nest of issues.

INSKEEP: Well, let me ask about the hornet's nest. I'm thinking of the president's travel ban some months ago, in which he said, I have total authority to do this. And other people said, no, actually, there are many grounds on which we can sue you. If somebody wanted to sue the president, based on this order in the military, are there grounds that you could imagine for a lawsuit?

FIDELL: There are. Although, I'm sorry to have to say, I'm skeptical that the U.S. Supreme Court would find such an order unconstitutional. But that's only the start of it. There are bases on which a member of the service can seek to unravel, as applied to him or her, a particular personnel policy decision. For example, a member of the service who is being thrown out may have a right to a hearing. A member of the service may be able to go to the Board for Correction of Military or Naval Records and try to get a - an exception in a particular case. And if that exception is denied, then you can go to federal court.

INSKEEP: OK. Well, this could just be the beginning of the discussion then. Eugene Fidell, thanks very much, really appreciate it.

FIDELL: My pleasure, Steve.

INSKEEP: That's Eugene Fidell. He teaches military law at Yale University. He spoke with us by Skype on this morning after President Trump, via Twitter, banned transgender individuals from serving in the military in any capacity.

(SOUNDBITE OF CLOGS' "2:3:5") Transcript provided by NPR, Copyright NPR.