The Joint Chiefs of Staff of the military have informed all commanders that there will be no change in official policy allowing transgender soldiers to serve openly because no policy has been handed to them.
In a message to commanding military officers Thursday, the chairman of the Joint Chiefs of Staff said there will be “no modifications” in the military’s policy allowing transgender people to serve in the military until the president issues specific direction to the secretary of defense. Until then, General Joseph Dunford said, officers will continue to “treat all personnel with respect.”
“There will be no modifications to the current policy until the President’s direction has been received by the Secretary of Defense and the Secretary has issued implementation guidance,” the letter read.
In other words, Trump cannot just change policy with a tweet. No policy has been handed to the secretary of defense and the secretary has not conferred a change in policy to the Joint Chiefs.
Secretary of Defense James Mattis is currently on vacation and reportedly had no idea Trump was going to shit the bed yesterday.
The White House can and probably will try to force the Pentagon to accept some kind of change in policy at some point, but that policy, whatever it is, will almost certainly be challenged in court.
A ban on transgender military service could be challenged on constitutional grounds, but there are other reasons why discharging current service members probably won't happen.
Trump’s tweet says, cryptically, that trans people can’t serve “in any capacity.” But discharging them after they’ve been told they have the right to serve would create serious problems of reliance.
Reliance is a legal term defined as acting on another’s promise or claim. As a general matter, you can’t induce someone to behave in a certain way, and then impose negative consequences when they do so. Courts have long invoked principles of basic equity to prevent unfairness in different situations. A person relocates based on a job offer, and incurs moving expenses and loss of his current job. A woman promises to give a man $10,000 to buy a car, and the man makes the purchase based on that promise. If the promisor then reneges on the commitment, courts will make them pay for the injured party’s loss. That is, as long as the reliance on the promise is reasonable—meaning that someone in the position of the promisee could have been expected to act on the promise.
Applied to this case, discharging someone currently serving as an openly trans person in the military—in other words, someone who came out or joined because of the military’s new policy—would create a serious reliance issue. If trans people are discharged, lawsuits will follow. Even if they aren’t, we can expect attorneys to seek a declaration from courts that no such discharges would be legal.