Outside the Beltway

Transgender Troops Sue Trump Over Military Ban

Just about two weeks after being announced, the President's proposed ban on military service by transgender troops is being challenged in Court.

Doug Mataconis · Thursday, August 10, 2017 · 12 comments

Last month, President Trump announced on Twitter that he would be changing a policy put in place by the Obama Administration and banning transgender troops from the U.S. military, a move that apparently caught both the White House and military and civilian leaders in the Pentagon by surprise given the fact that policy on the issue was under review and awaiting discussion by the Joint Chiefs of Staff. In response to the President’s announcement, military leadership stated that current policy would remain in effect notwithstanding the President’s tweets until a formal order was received from the White House. More recently, the Commandant of the U.S. Coast Guard stated that his branch of the service would continue to follow the Obama Era policy until they receive a formal order to the contrary. In effect then, transgender troops remain in limbo. As a matter of existing policy, the military takes the position that they are welcome, accepted, and will be accommodated as appropriate. On the other hand, though, there are the President’s tweets, which the White House has said represent official policy, and the threat that an order could come from the President that would change existing policy and essentially mean the end of their military careers. In that regard, it was reported by The Blade, a news site that caters to the LGBT community, that a new policy directive regarding transgender troops had been prepared by the White House and would be sent to the Defense Department. To date, however, that has apparently not occurred.

Rather than waiting to see what happens, one group of transgender troops have decided to take the President to Court seeking to block implementation of his proposed policy changes:

WASHINGTON — Five transgender people serving in the United States military sued President Trump and top Pentagon officials on Wednesday, asking that transgender troops be allowed to stay in the military.

The lawsuit was filed in response to Mr. Trump’s ban abruptly announced last month on Twitter.

The plaintiffs filed the lawsuit under pseudonyms — “Jane Doe” Nos. 1-5 — in the United States District Court for the District of Columbia. The case was organized by two rights groups, the National Center for Lesbian Rights and GLBTQ Legal Advocates & Defenders, or GLAD.

Other rights groups — like Lambda, Outserve and the American Civil Liberties Union — have also said they are preparing lawsuits but are holding off until the Trump administration takes a step to put the ban into effect, such as issuing formal guidance to the military or beginning the process of changing military rules.

But Shannon Minter, the legal director for the National Center for Lesbian Rights, said he believed the case was already ripe for a lawsuit because active transgender service members — such as those deciding whether to re-enlist — were already being harmed by the uncertainty created by Mr. Trump’s statements on Twitter.

“It is critical to act now because the harms are happening now,” Mr. Minter said. “These service members deserve to know where they stand.”

A 2014 study by the Williams Institute at the University of California, Los Angeles, estimated that about 8,800 transgender people were serving on active duty, with thousands more in the National Guard and reserve; a 2016 study by the RAND Corporation estimated that there were about 2,450 such active-duty troops.

In 2016, the Obama administration, after extensive study, lifted a prior ban on transgender troops. That permitted transgender members currently serving to come out openly; openly transgender people are set to be allowed to join the military starting next year.

(…)

The lawsuit complaint argued that banning transgender people from serving in the military would be unconstitutional discrimination, violating their rights to equal protection and due process. It also argued that the Pentagon could not end people’s military careers for coming out openly as transgender because they did so in relying on the Pentagon itself saying they would be permitted to serve.

Colonel Haverstick said the military was “aware of the lawsuit; however, we are not able to comment due to the pending litigation.”

Other rights groups preparing similar legal challenges said on Wednesday that they were still holding off. Among them are both Outserve and Lambda, which have said they are recruiting plaintiffs for a joint lawsuit when the matter is ripe, a legal term meaning the facts of a case have developed enough for a decision.

“We have not yet filed suit, although we stand ready to do so,” Jon Davidson, the Lambda legal director, said on Wednesday. “We have been awaiting confirmation that the White House has transmitted a final guidance, directive or other instructions to the Department of Defense, which, to the best of our knowledge, has not yet occurred.”

James D. Esseks, director of the American Civil Liberties Union’s Lesbian Gay Bisexual Transgender & HIV Project, said that his group was also holding back, but noted that it had sent a letter to the White House asking it to preserve all documents related to the matter in anticipation of future litigation.

At the moment, this lawsuit appears to be vulnerable to being dismissed because it fails to meet a legal standard called “ripeness” given the fact that there has been no official policy announcement from the White House or Defense Department outside the President’s tweets, and no official action has been taken toward any of the Plaintiffs, all of whom are anonymous for what seems like obvious reasons. Essentially then, the ripeness argument would be that the Plaintiffs’ lawsuit is at best premature because nothing official has happened yet and that it is unclear that any adverse action will be taken against the Plaintiff. Generally speaking, a case dismissed for lack of ripeness is not considered to have been dismissed with prejudice and could be brought again after the policy has officially changed and, most certainly, in the event that some kind of adverse action is taken against any of the Plaintiffs. In their lawsuit, the Plaintiffs seek to get around this ripeness argument by alleging that the President’s announcement on Twitter is likely to be put into official policy form in the near future, that their position in the military has been put in jeopardy by the Presidential tweets and what clearly seems like a future change of policy, and that their rights are being violated even though the policy has yet to officially change. Given the report from The Blade noted above, it seems quite likely that the announcement of an official policy change could come at any time, and may well come long before the District Court gets the chance to rule on the matter. Because of that, it’s not at all clear that a ripeness argument would be successful, although I’d look for the government to make that argument in the event that there has not been an official announcement by the time a response to the lawsuit is due, which would be sixty days after the Complaint is served on the Defendants.

As for the merits of the lawsuit, the Plaintiffs are alleging a number of claims under the Constitution and under the law. Primarily, the Plaintiffs argue that the ban would constitute a violation of their rights under the Equal Protection Clause and the Due Process Clause due to the fact that it would purport to discriminate against them based on sexual orientation and gender identity without justification and without sufficient cause. Given the fact that the most comprehensive studies of this issue have shown that there would be no adverse impact on the military in allowing transgender service members to serve openly and that there are apparently no studies showing that open service by transgender troops would have an adverse impact on military readiness or functioning, this argument would seem to be fairly straightforward. Additionally, there is the evidence available from numerous nations around the world that have allowed transgender troops to serve in their militaries. These nations include American allies such as the United Kingdom, Canada, France, Germany, Norway, Spain, Estonia, the Czech Republic, The Netherlands, Belgium, Estonia, Denmark, New Zealand, Australia, and Israel. Just as was the case with open service by lesbian and gay soldiers, there have been no reports of any adverse impact on military readiness and performance resulting from allowing transgender service members to serve openly. In addition to these Constitutional arguments, the Plaintiffs also assert a claim under a legal theory known as Estoppel in which they argue that they had previously served in their respective military branches, in some cases for a decade or more, without revealing that they were transgender and that they revealed their gender identity in reliance on the policy changes announced by the Defense Department in recent years. Due to the President’s tweets, though, and the anticipated policy change that will result from it, the Plaintiffs allege that they have ” lost the stability and certainty they had in their careers and benefits, including post-military and retirement benefits that depend on the length of their service.” As a result, the Plaintiffs are seeking a declaration that the proposed policy change is unconstitutional and injunctions against the enforcement of any such policy.

As a legal matter, the Plaintiffs claims would seem to require a Court to balance two competing interests in its evaluation of the new policy toward transgender service members. On one side there is the Constitution and a series of cases in which the Supreme Court has acknowledged that the Equal Protection and Due Process Clauses do offer at least some protections to the rights of LGBT persons against action by the government. These cases go back to the 1996 case of Roemer v. Evans, in which the Court struck down a Colorado law that sought to bar local governments from expanding civil rights protections to LGBT citizens. Additionally, cases establishing these rights have included Lawrence v. Texas, which struck down laws that sought to criminalize consensual sodomy, United States v. Whitney, which struck down the provisions of the Defense of Marriage Act that defined marriage as only being between men and women for purposes of Federal law, and, of course, Obergefell v. Hodges, which struck down the remaining laws against same-sex marriage. Based on the precedent established by these cases, the Plaintiffs in these cases would seem to have a strong case in favor of the proposition that the proposed policy change would violate their rights under the Constitution, and that they have been damaged by the President’s announcement due to their reliance upon the policy put in place by the Obama Administration that encouraged transgender service members to come out of the closet. On the other hand, there is a long history of Courts being deferential to the military in the implementation of policy regarding standards for military service. Where the Courts will come down in balancing those two interests will play a substantial role in deciding the fate of this lawsuit. As things stand, though, it seems to me that the Plaintiffs have a strong case here given the fact that there seems to be no credible evidence that allowing open service by transgender troops would adversely impact the military and the fact that many other nations, including nations such as Israel that have to relied on strict military readiness, have allowed transgender service and experienced no negative consequences as a result.

Here’s the Complaint:

Doe v. Trump Et Al Complaint by Doug Mataconis on Scribd