BY CHRIS JOHNSON, WASHINGTON BLADE
The Trump administration called a legal challenge to President Trump’s transgender military ban “premature several times over” in a brief filed late Wednesday seeking to block LGBT legal groups from putting the policy on hold as litigation against it moves forward.
In a 49-page filing, the U.S. Justice Department responds to a request for a preliminary injunction in Doe v. Trump, the lawsuit filed by the National Center for Lesbian Rights and GLBTQ Advocates & Defenders pending before federal court in D.C. The lawsuit was assigned to U.S. District Judge Colleen Kollar-Kotelly, a Clinton appointee.
The brief takes issue with the filing of the lawsuit, noting it was filed after Trump tweeted he’d ban transgender service members, but before he formally directed the Pentagon to take that action in a Whit Hose memo.
“The president’s memorandum states that no policy changes to the status quo will be effective until at least after January 2018,” the brief says. “The president further directed the secretary of defense to determine how to address transgender individuals currently serving in the military and that no action be taken against such individuals until after a policy review is completed.”
Moreover, the brief points out a review at the Pentagon on implementation of Trump’s ban is ongoing and Defense Secretary James Mattis has issued interim guidance barring separation of transgender service members and allowing them to re-enlist in the armed forces.
“Plaintiffs’ current complaint and motion account for none of this,” the brief says. “The amended complaint does not even mention, let alone challenge, the interim guidance in effect today. Similarly, plaintiffs declined to bring the interim guidance to the court’s attention in connection with their pending motion, even though the guidance plainly constitutes a significant development that negates their demand for emergency relief.”
The plaintiffs in the lawsuit are six anonymous transgender service members who are currently in the armed forces and fear discharge under Trump’s policy as well as two named plaintiffs: Regan Kibby, a student serving at the U.S. Naval Academy, and Dylan Kohere, who’s participating in the Reserve Officers’ Training Corps at the University of New Haven.
The Justice Department argues these plaintiffs lack standing because none of them “face a current or imminent threat of injury during the interim period while the policy is being studied.” With respect to the two named plaintiffs, the brief maintains “they will not be in a position to apply for an officer’s commission until after they complete their respective courses of study in 2020, at the earliest.”
In the event the court were to allow plaintiffs to challenge the policy, the Justice Department argues such a challenge wold fail because the policy “is plainly lawful.”
The filing argues courts have traditionally deferred to the military on its on defense policies on the basis the judiciary isn’t suited to second-guess the military on the issue. Further, the Justice Department argues an injunction would compromise the ongoing study on transgender service at the Pentagon.
“The public interest would be significantly harmed if an injunction precluded the president and secretary of defense from receiving expert advice on important issues of military personnel policy and acting in light of the results of that study,” the brief says. “And even if plaintiffs somehow hurdle every problem with their challenge, there is no basis for the worldwide injunction against the military they request.”
The Justice Department concludes the court should grant it’s motion to dismiss the case and reject the LGBT legal groups’ request for a preliminary injunction.
Signing the brief is Acting Assistant Attorney General for the Civil Division Chad Readler, Deputy Assistant Attorney General Brett Shumate, Branch Director John Griffiths, Deputy Director Anthony Coppolino, Senior Trial Counsel Ryan Parker and Trial Attorney Andrew Carmichael.
Absent from the brief is the widely held perception that although Mattis set up a review to study transgender military service, the outcome is predetermined and just a process to implement Trump’s ban on transgender people in the military. The brief also ignores the perception the ban originated with Trump, not the military.
LGBT groups responded by the brief by ridiculing the assertion a request for legal relief at this time for transgender service members is premature.
Jennifer Levi, director of GLAD’s Transgender Rights Project, said in a statement the filing “reads like pure fiction.”
“It states a fantasy that the president’s announcement of a ban on military service for transgender people has changed nothing,” Levi said. “That’s simply not true. Every day this reckless ban stays in place, our military strength is diminished and our country is less safe for it. We are optimistic the court will see through this smokescreen and halt the ban.”
Shannon Minter, legal director for the National Center for Lesbian Rights, said in a statement the Justice Department is “asking the court to turn a blind eye to the devastation the President has caused in the lives of real people and real families.”
“Because of the President’s ban, smart, dedicated, and idealistic young people like our plaintiffs Regan Kibby and Dylan Kohere are barred from fulfilling their dreams of military service,” Minter said. “And transgender people who are already serving have been told that their skills, training, and years of dedicated service are not valued. The ban has left them scrambling to make new plans for their futures, just as it has undermined our nation’s security. This is the exact opposite of how military policy should be made.”
The brief responds to one of the four pending lawsuits in federal court against Trump’s transgender military ban. In the three other lawsuit — one filed by OutServe-SLDN and Lambda Legal, one filed by the American Civil Liberties Union, one filed by Equality California — the pro-LGBT legal groups have similarly requested preliminary injunctions against the ban, although the Justice Department hasn’t yet responded in those cases.