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Authors

Eric Merriam

Abstract

President Trump’s currently litigated “transgender ban,” which excludes transgender persons from military service, is premised in part upon a claim that transgender persons’ presence in the military adversely affects “unit cohesion.” This use of identity- based “unit cohesion” as a justification for excluding a group from military service is the latest episode in a long history of the government asserting “unit cohesion” to justify excluding people from military service based on their identities. This Article contends that unit cohesion, when premised on identity, is always an impermissible justification for exclusion from military service because it is unconstitutional animus. Though the animus doctrine is incomplete, with only a few Supreme Court cases identifying its contours, its growing significance to equal protection jurisprudence should not be ignored. This Article demonstrates that unit cohesion is animus under each of the variants articulated by the Supreme Court and understood by animus scholars. Though this Article argues that all attempts to justify exclusion from military service using identity-based claims of unit cohesion are impermissible animus, it applies animus jurisprudence only to the current “transgender ban.” By applying animus jurisprudence to the transgender ban, this Article demonstrates that this latest use of unit cohesion should invalidate the ban.

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