BY CHRIS JOHNSON, WASHINGTON BLADE
LGBT legal groups are seeking “immediate intervention” from a federal court to block President Trump’s ban on transgender military service as litigation moves forward.
In a 51-page legal brief, lawyers from GLBTQ Advocates & Defenders and the National Center for Lesbian Rights seek a preliminary injunction against enforcement of the ban, which Trump directed late last week.
“The ban marks transgender service members as unequal and dispensable, stigmatizing them in the eyes of their fellow service members and depriving them of the unique honor and status associated with uniformed service to their country,” the brief says. “Because the public has no interest in enforcing an unconstitutional policy and has every interest in the continued service of capable and dedicated service members, both the balance of the equities and the public interest weigh in favor of granting an injunction here.”
The case, Doe v. Trump, was filed earlier this month — after Trump announced the ban on Twitter, but before he issued guidance directing that course — by LGBT legal groups on behalf of five unnamed plaintiffs currently serving in the armed forces. The lawsuit was assigned to U.S. District Judge Colleen Kollar-Kotelly, a Clinton appointee.
In addition to filing a request for an immediate block to the transgender ban, the legal team behind the lawsuit amended the complaint to included three additional plaintiffs.
Two of these plaintiffs — Regan Kibby, a midshipman at the U.S. Naval Academy won’t be able to complete his education because of the indefinite ban on enlistment; Dylan Kohere is a college student at the University of New Haven — just beginning ROTC training — are different from the other plaintiffs because they’re looking to accede into the armed forces as opposed to retaining their current position. The third new plaintiff is unnamed and serves in the Army.
“Absent this Court’s immediate intervention, their military careers and paths will be irreparably harmed,” the brief says. “The military requires strong bonds among unit members to maintain the trust and morale necessary to survive the stresses of military discipline, deployment, and combat. So too, students in the military academies and ROTC depend on the bonds they form during their education and training to build the foundation of relationships that determine their future military careers.”
Carisa Cunningham, a GLAD spokesperson, said the legal team added additional plaintiffs in response to the portion Trump memo that made the Pentagon’s temporary delay on transgender enlistment an indefinite hold.
“These plaintiffs are experiencing harms right now because of the prohibition against enlistment,” Cunningham said. “The amended complaint adds plaintiffs who are experiencing clear, immediate harms because of the enlistment ban.”
The brief makes the case the transgender military ban is unconstitutional because discrimination on the basis of transgender status warrants strict scrutiny — a standard of review never explicitly granted to transgender people by the U.S. Supreme Court.
“Policies that expressly target transgender people meet all of the traditional criteria for a
suspect classification that warrants strict scrutiny,” the brief says. “The Supreme Court has recognized that certain classifications are inherently suspect because they single out discrete groups that have historically and unjustifiably been oppressed.”
But the filing also argues the ban warrants intermediate scrutiny because it amounts to sex discrimination and “cannot satisfy any level of review.”
Making the case the ban violates plaintiffs’ right to due process under the Fifth Amendment, the brief argues the ban lacks any rational basis, burdens plaintiffs right to autonomy and penalizes plaintiffs for coming out as transgender after the previous ban on transgender service was lifted during the Obama administration last year.
“By dictating that certain members are not fit to serve based solely on their status as transgender people, the Commander in Chief of the Armed Forces has significantly undermined that cohesion and trust, which Plaintiffs may be unable to rebuild absent an order from this Court enjoining enforcement of the ban,” the brief says.
Even though transgender people were unable to enlist into the armed forces because of existing policy prior to Trump’s directive, Cunningham said the injunction sought by legal groups would enjoin enforcement of that policy and allow transgender people to accede into the military.
“The accessions policy allowing transgender people to serve was set to originally go into effect in July of this year.” Cunningham said. “The Trump administration has now put it off indefinitely. Because of that two of the new plaintiffs are experiencing immediate harms to their education and military careers.”
In their announcement of their requests for a preliminary injunction, LGBT legal groups included statements from former civilian leadership at the Pentagon endorsing the motion in opposition to the transgender military ban.
Among those speaking out is former Army Secretary Eric Fanning, who’s served in civilian leadership positions for each branch of the armed forces and was the first openly gay person confirmed as Army secretary.
Fanning said in a statement the working group that evaluated transgender service under the Obama administration before the older ban was lifted determined “the discharge of highly trained and experienced service members would leave unexpected vacancies in operational units and require the expensive and time-consuming recruitment and training of replacement personnel.”
The lawsuit is one of three pending cases challenging the transgender ban. Another lawsuit filed by OutServe-SLDN and Lambda Legal is pending before a federal court in Washington State. Yet another filed by the American Civil Liberties Union is pending before a federal court in Maryland.