Five transgender service members serving on active duty filed suit yesterday against President Donald J. Trump in Federal Court in Washington, D.C. over Trump's transgender military service ban.
The suit also identifies the secretaries of Defense, Homeland Security, the Army and the Air Force, the Chairman of the Joint Chiefs of Staff, the departments of the Army, Air Force and Coast Guard, and the United States government as a whole as defendants.
Each of the unnamed service members is referred to as Jane Doe to protect them from possible retaliation. They are members of the Air Force, Army, National Guard and Coast Guard.
Some have served as long as two decades, including tours in Iraq and Afghanistan.
The lawsuit, filed by the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates & Defenders (GLAD), argues that reversing the Pentagon’s current policy is unconstitutional and denies transgender service members equal protection and due process. Transgender troops have been allowed to serve openly since June 2016.
Nothing like this has ever happened before. “This is not normal for a president to treat active service members this way. It’s unprecedented in the history of the military for a group to be embraced and included, and then purged.
--Shannon Minter, NCLR
We have very serious reason to believe that they are moving forward with this new policy.
These service members came out, relying on the (Pentagon’s) policy and now they have just been blindsided. They are facing immediate choices about training, reenlistment, healthcare and their families. How are they supposed to make these choices given the drastic uncertainties now hanging over their heads?
Nobody should be treated that way, especially people who have made the military the center of their lives.
Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.
Plaintiffs, along with thousands of servicemembers, have followed protocol in informing their chain of command that they are transgender. They did so in reliance on the United States' express promises that it would permit them to continue to serve their country openly.
If enforced, the directive will end their service, they note. Even before it's enacted, the tweets have "resulted in immediate, concrete injury to Plaintiffs by unsettling and destabilizing plaintiffs' reasonable expectation of continued service.
I was very relieved and came out as transgender to my commanding officers, who were supportive . My experience has been positive and I am prouder than ever to continue to serve. The military has been my life, but now I’m worried about my family’s future.
There are between 1,320 and 6,630 active duty transgender individuals currently in the military, about 0.05 percent of the total active force, according to a Rand Corporation analysis. Other studies put that number as high as 15,000.
In the lawsuit
...[counsel] argue this guidance infringes upon the equal protection and due process rights of trans troops. According to their complaint, the “categorical exclusion of transgender people from military service … based on their sex and transgender status” lacks any rational basis and is therefore too “arbitrary” to comport with the Fifth Amendment’s equal protection component. Moreover, the policy would deprive transgender service members of their property and liberty interests based exclusively on their gender identity, a “capricious” deprivation of due process.
The complaint also asserts that the government cannot lawfully rescind rights already granted to trans troops. In June 2016, the Pentagon ended its ban on open trans service, a policy that many troops relied upon in coming out as transgender. The suit alleges that the military may not now reverse this policy and punish those troops who “informed their commanding officers that they are transgender … in reliance upon that promise from” the Pentagon. It seeks an injunction “prohibiting the categorical exclusion of transgender people from military service.
We are appalled by the president’s callous mistreatment of transgender soldiers, and we want to send a message loud and clear that we will aggressively challenge any attempt to harm them.
Never before has the Pentagon invited a new group of individuals to serve, then broken its promise and purged them from the ranks based solely on political judgment. The due process concerns raised by such a move are heightened by troops’ reliance interest. It is one thing to prohibit transgender people from enrolling in the military in the first place. To invite enrolled trans troops to come out, then expel them for making that decision on the basis of mere animus would seem to push the limits of due process. As a general rule, the government may not extend a guarantee of liberty to individuals and then punish them for relying upon that guarantee. On the merits, the plaintiffs have a strong case.
Will the courts reach the merits of this case? That’s a tricky question. Federal courts may not render judgment in a case unless it is “ripe”—that is, rooted in a present controversy rather than based on speculative future events or policies. The government will likely respond to this suit by arguing that the trans ban has not been formalized, let alone implemented. But that argument is a bit of a double-edged sword: As civil rights attorney Sasha Samberg-Champion points out, if the government objects on ripeness grounds, it would effectively hand a victory to the plaintiffs by admitting that it isn’t really doing anything. Put differently, if the lawsuit fails because the trans ban isn’t ripe for adjudication, it also succeeds in proving that the trans ban does not yet exist, and may not for the foreseeable future.
In that sense, Wednesday’s lawsuit is really a highly effective warning shot. If the Pentagon is poised to purge trans troops, the NCLR and GLAD will sue to stop them. If the Pentagon is not poised to purge trans troops, the NCLR and GLAD will make them prove it in court. Either way, the suit should bring much-needed clarity to a policy to a cruel and unjustified policy that stands to ruin the lives of thousands.
--Mark Joseph Stern. Slate