Employment Law Daily Trump makes transgender military ban ‘official,’ drawing more litigation
Wednesday, August 30, 2017

Trump makes transgender military ban ‘official,’ drawing more litigation

By Pamela Wolf, J.D.

On August 25, 2017, President Donald Trump, despite earlier backlash, moved forward on his plan to ban transgender individuals from joining or serving in the military, issuing a Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security. Under Trump’s directive, transgender individuals currently serving may remain, at least for now, but without funding for sex reassignment procedures except for those necessary to protect the health of an individual who has already begun a reassignment procedure. The “official” ban prompted swift, negative reactions.

In June 2016, following what was said to be an “exhaustive review,” the Obama Administration established a framework that permitted transgender individuals to serve openly in the military, authorized the use of Departments of Defense (DOD) and Homeland Security (DHS) resources to fund sex-reassignment surgical procedures, and permitted such individuals to join the military after July 1, 2017. Under the Trump Administration, the Secretaries of DOD and DHS have since extended the deadline to alter the currently effective accession policy to January 1, 2018, while the departments continue to study the issue.

Surprise tweet. While that study was ongoing, on July 26, 2017, Trump announced via a series of tweets that “the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.” Trump’s decision, which according to media reports was made without consultation with the Joint Chiefs of Staff, took military leaders and service members alike by surprise, especially those who have already reported their transgender status pursuant to military protocol. Military leaders declined to take action, though, awaiting further guidance from the White House.

Others, however, did not await further confirmation of Trump’s announcement. On August 9, lawyers from GLBTQ Legal Advocates & Defenders and the National Center for Lesbian Rights filed a federal lawsuit challenging Trump’s tweet directive to reinstate the ban on transgender people serving in the military. The suit, Doe v. Trump, was filed in the District of Columbia (Case No. 17-cv-1597) on behalf of five transgender service members with nearly 60 years of combined military service.

The complaint raises claims of equal protection, due process, and estoppel, based on the inequity of the reversal of military policy after thousands of service members followed protocol and informed their chain of command that they are transgender.

“Official” policy reversal. In his August 25 Memorandum, Trump says the Obama Administration “failed to identify a sufficient basis to conclude that terminating the Departments’ longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources, and there remain meaningful concerns that further study is needed to ensure that continued implementation of last year’s policy change would not have those negative effects.”

Trump ordered, effective March 23, 2018, a return to “the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016 until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not have the negative effects discussed above.” The directive maintains the current policy of not permitting transgender individuals to join the service beyond January 1, 2018, “until such time as the Secretary of Defense, after consulting with the Secretary of Homeland Security, provides a recommendation to the contrary that I find convincing.” (Emphasis ours)

Effective March 23, 2018, the directive also ends the use of DOD and DHS resources to fund sex reassignment surgical procedures, “except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.”

By February 21, 2018, the Secretary of Defense, in consultation with the Secretary of Homeland Security, is required to submit to the president a plan for implementing both policy changes. The implementation plan also should include a determination as to how to address transgender individuals currently serving in the military. Until that determination, no actions may be taken against transgender individuals pursuant to the policy reversal on military service.

Unfavorable reactions. There was quick and unfavorable reaction to Trump’s Memorandum. “This is a shameful, blatantly political decision that has nothing to do with protecting our country,” House Democratic Caucus Chairman Joe Crowley (D-N.Y.) said in a statement. “Transgender individuals serve their country with distinction, filling critical needs within the military. We should welcome and celebrate their patriotism. This memorandum from President Trump would stop new transgender enlistees from joining the military, strip current servicemembers of essential health care needs, and would give the secretary of defense wide latitude to remove transgender individuals from the ranks on the basis of their identity instead of their ability.”

More lawsuits filed. On August 28, Lambda Legal and OutServe-SLDN registered their disapproval by filing a federal lawsuit in the Western District of Washington challenging the constitutionality of Trump’s ban. The suit is filed on behalf of two individuals who seek to join the military; one current service member who seeks appointment as an officer; the Human Rights Campaign, the nation’s largest LGBT advocacy organization; and Gender Justice League, a gender and sexuality civil and human rights organization, headquartered in Seattle.

“Dripping with animus, the Ban and the current accessions bar violate the equal protection and due process guarantees of the Fifth Amendment and the free speech guarantee of the First Amendment,” the complaint states. “They are unsupported by any compelling, important, or even rational justification.”

“This ban not only wrongfully prevents patriotic, talented Americans from serving, it also compromises the safety and security of our country,” Lambda Legal Senior Attorney Peter Renn said in a release.

The ACLU of Maryland and six current members of the armed forces who are transgender also filed a federal complaint in the District of Maryland. They argue 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 argues that the ban discriminates based on sex and transgender status and that the ban is based on uninformed speculation, myths and stereotypes, moral disapproval, and a bare desire to harm this already vulnerable group.

“Each and every claim made by President Trump to justify this ban can be easily debunked by the conclusions drawn from the Department of Defense’s own review process,” according to Josh Block, senior staff attorney with the ACLU’s LGBT & HIV Project. “Allowing men and women who are transgender to serve openly and providing them with necessary health care does nothing to harm military readiness or unit cohesion. Men and women who are transgender with the courage and capacity to serve deserve more from their commander-in-chief.”

Earlier DOD review. The ACLU pointed out that after a thorough process, the DOD concluded in 2016 that there was no basis for the military to exclude transgender individuals from openly serving their country, subject to the same fitness requirements as other service members. “This review process carefully considered and rejected the notion that medical costs, military readiness, or other factors presented any reason to discriminate against transgender service members, many of whom had already been serving with honor in silence for years,” the ACLU said.

The cases are Doe v. Trump, D.D.C., No. 17-cv-1597; Karnoski v. Trump, W.D. Wash., No. 2:17-cv-01297; and Stone v. Trump, D. Md., No. 1:17-cv-02459-MJG.

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