Employment Law Daily Another court temporarily enjoins Trump’s military transgender ban
Tuesday, November 28, 2017

Another court temporarily enjoins Trump’s military transgender ban

By Pamela Wolf, J.D. and Joy P. Waltemath, J.D.

Another court, this time the U.S. District Court in Minnesota, has granted a preliminary injunction against the Trump Administration’s ban on transgender individuals serving in the U.S. military. On November 21, the court granted the motion filed by the ACLU of Maryland and six current members of the armed forces who are transgender, who had argued that the ban violates the constitutional guarantees of equal protection and substantive due process by singling out transgender individuals for unequal and discriminatory treatment. The lawsuit contended that the ban discriminates based on sex and transgender status, and that it was based on uninformed speculation, myths and stereotypes, moral disapproval, and a bare desire to harm this already vulnerable group.

Trump transgender ban. In an August 25, 2017, presidential memorandum, Trump made good on his earlier tweets announcing the transgender ban that apparently had taken the rest of his administration by surprise. Before the memorandum, the Department of Defense had announced that openly transgender individuals would be permitted enlist in the military, effective January 1, 2018. The DOD also barred discharge of service members based solely on their gender identities.

Trump, however, reversed these policies by indefinitely extending a prohibition against transgender people entering the military and requiring the military to authorize, by no later than March 23, 2018, the discharge of transgender service members. The DOD is required to submit a plan implementing the memorandum’s directives by February 21, 2018. On September 14, the Secretary of Defense promulgated interim guidance establishing DOD policy toward transgender service members until the memorandum’s directives become effective. Under the interim guidance, the protections afforded to transgender service members against discharge lapse early next year.

Preliminary injunction. In granting the request for a preliminary injunction against the transgender ban by these plaintiffs, the federal court in Maryland first found that they had standing, finding not only had they met the causation and redressability elements, but they had also shown injury-in-fact. Said the court, “there is no doubt that the Directives in the President’s Memorandum set apart transgender service members to be treated differently from all other military service members.”

Applying intermediate scrutiny, reasoning that “transgender individuals appear to satisfy the criteria of at least a quasi-suspect classification and that the Directives are a form of discrimination on the basis of gender,” the court cited the president’s tweets and asserted that they had “not emerge[d] from a policy review, nor did the Presidential Memorandum identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest.” The court further agreed that there is sufficient support for the plaintiffs’ claims that “the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.”

Significantly, the court went on to find that “based on the exhibits and declarations currently on the record, the Directives are unlikely to survive a rational review. The lack of any justification for the abrupt policy change, combined with the discriminatory impact to a group of our military service members who have served our country capably and honorably, cannot possibly constitute a legitimate governmental interest,” it concluded. Accordingly, the court enjoined enforcement of the Retention, Accession, and Sex Reassignment Surgical Directives pending the final resolution of the lawsuit.

Driven by disapproval of transgender people. In an October 31 order by the U.S. District Court for the District of Columbia, that court had concluded that Trump’s directives could not survive the “fairly searching form of scrutiny” to which they were subject “because they are not genuinely based on legitimate concerns regarding military effectiveness or budget constraints, but are instead driven by a desire to express disapproval of transgender people generally.” The D.C. court had preliminarily enjoined implementation of the Retention Directive and the Accession Directive but not the Sex Reassignment Surgery Directive (see Trump’s ban on transgender people serving in military is preliminarily enjoined, October 31, 2017).

The case is Stone v. Trump, No. MJG-17-2459, Garbis, M.

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