There's a big difference between a ban on Muslim travelers, which has a built-in constituency in ICE (which exists to persecute immigrants) and targets a group of people who intrinsically have no power base in America, and a ban on transgender service in the military, which cuts against a lot of military values and targets people who are currently serving and thus their fellow servicepeople. Basically, I think it's easier in today's America to stigmatize Muslims than transgender soldiers.
Also, Trump got a lot of help with the travel ban from the fact that he explicitly campaigned on it and thus people could rationalize it as being the will of the American people.
Also, of course, it doesn't help that he burned a lot of bridges by explicitly saying Nazis are fine people.
None of this really
None of this address the standards of strict scrutiny or any legal argument
It must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of a large number of individuals, and not violating explicit constitutional protections.
Trump stated his view on this.
Our military must be focused on decisive and overwhelming.....
....victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.
Gonna be very difficult for a judge after a year of service and no enlisting of openly transgender troops to just flatly say trump is wrong. This is the strongest point to attack but trump hasn't been as blatantly hateful hear like he was with the muslim ban
The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.
Seems pretty "narrowly tailored" to me. It only affects the people trump claims might cause issues (Again this argument is dubious and wrong, but again a judge doesn't want to second guess the military).
The law or policy must be the least restrictive means for achieving that interest: there must not be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this "least restrictive means" requirement part of being narrowly tailored, but the Court generally evaluates it separately.
Lets say you did think transgender troops would disrupt the military. How would you make it any more tailored that trump did? He gave the generals wide discretion in how to treat the current troops who will probably be allowed to stay. He didn't have a hard and fast timeline like the muslim ban.
I think the transgender troop ban is horrible policy, morally repulsive but I'm not sure that he doesn't have the power. And this tendency to pray the courts save us with creative but rather unpersuasive legal arguments.
The fact is the law doesn't protect transpeople like it should. Republicans are preventing it from doing that. That's were the work should be. To establish a legal basis for protections. We need federal anti-discrimination laws for LGBT communities.
This is why I said the ACLU seems to have the better approach. Its trying to undermine the first point by saying its just animus. The amount of evidence for this is underwhelming IMO though. It points to the Open Service Directive (which the Trump administration will argue was wrong) and news reports.
I hope I'm wrong. I just don't think this case is very strong.
