Is Trump’s Transgender Military Ban Destined to Fail? (Updated)

“Ultimately, the policy that Secretary Mattis is directed to implement is one that transgender people cannot be in the military, period.”

A series of lawsuits challenge “all aspects” of the president's ban on transgender people in the U.S. military. Shutterstock

UPDATE, January 22, 2019, 9:38 a.m.: The Supreme Court ordered that the Trump administration should be allowed to enforce its trans military ban as the case proceeds through the court system. One nationwide injunction remains in place.

UPDATE, December 11, 2017, 2:10 p.m.: The Pentagon, per a court order, will allow the enlistment of transgender people beginning January 1, the Associated Press reports. The Trump administration is likely to appeal the order.

Legal challenges to President Trump’s transgender military ban call into question the constitutionality of yet another attack on marginalized people.

The immediate pushback indicated that the administration’s latest discriminatory measure could fail in the courts and in the court of public opinion, much like Trump’s various iterations of a Muslim travel ban.

Several prominent advocacy groups announced they’re suing Trump over his Friday night memorandum instructing U.S. Secretary of Defense James Mattis to prohibit openly transgender people from entering the military and decide how to oust those who are already serving. Mattis must end the military’s coverage of transition-related health care. Trump has baldly lied about transgender service members’ “tremendous medical costs” when in fact, the military spends five times as much on Viagra, the erectile dysfunction drug.

The military ban arrived in the form of an official directive from the White House’s press office, rather than the president’s personal Twitter account. Trump’s silence diverged from his much-derided series of tweets last month announcing the sweeping prohibition was in the works. Trump instead kept up a near-constant stream of Hurricane Harvey updates, attracting criticism for focusing on weather conditions rather than human conditions and breaking only to announce his pardon of convicted criminal Joe Arpaio, the infamous former Arizona sheriff who long terrorized undocumented families.

But Trump failed to distract groups committed to LGBTQ rights.

Ban Faces Three Lawsuits

Lambda Legal and OutServe-SLDN on Monday filed suit, challenging Trump’s military ban on behalf of future, current, and past members of the military. The groups are representing the Human Rights Campaign and Gender Justice League, along with three transgender people: two who want to join the military, including the legal challenge’s namesake, Ryan Karnoski, and one current service member who applied for an officer position in the U.S. Army.

Attorneys from Lambda Legal and OutServe-SLDN took Karnoski v. Trump to the U.S. District Court for the Western District of Washington, the same court where advocates were the first of many to successfully sue and block enforcement of Trump’s Muslim ban. Much of the Muslim ban remained blocked until the U.S. Supreme Court agreed to hear the challenges and lifted the orders preventing the Trump administration from enforcing the interim order.

The American Civil Liberties Union on Monday sued to block the ban, partnering with law firm Covington & Burling LLP to represent six transgender service members in Stone v. Trump. The suit, named for Petty Officer First Class Brock Stone, a naval officer who served a nine-month deployment in Afghanistan, is pending in U.S. District Court of Maryland.

The Maryland District Court is another one of the federal district courts that issued an order to block enforcement of the Muslim ban.

The new lawsuits join the National Center for Lesbian Rights’ (NCLR) and GLBTQ Legal Advocates and Defenders’ (GLAD) Doe v. Trump, pending since early August in the U.S. District Court for the District of Columbia, a federal court historically supportive of LGBTQ civil rights. NCLR and GLAD, as Rewire reported, filed suit on behalf of five trans service members with a combined 60 years of experience, according to a joint statement.

“There’s a variety of legal arguments in front of the courts,” Harper Jean Tobin, the National Center for Transgender Equality’s director of policy, told Rewire. “Some of these lawsuits are requesting preliminary injunctions, so it may not be too long that we have to wait before we see how the courts will deal with these cases.”

Together, the lawsuits challenge “all aspects” of Trump’s ban, Tobin said. The lawsuits undermine the ban on joining the military, the ban on continuing to serve in the military, and the ban on obtaining transition-related health care as a service member, Tobin said.

Trump’s memorandum gives Mattis time and discretion in determining how to implement all of the above. The New York Times in July described the defense secretary as “appalled” by Trump’s tweets announcing the forthcoming ban, though not at their discriminatory content.

Unless Mattis flat out refuses to enforce the ban, his only discretion lies in how to execute it.

“It’s possible to make too much of the discretion given to the Defense Department in the president’s memo,” Tobin said. “Ultimately, the policy that Secretary Mattis is directed to implement is one that transgender people cannot be in the military, period.”

Administration-Wide Anti-Trans Assault

Tobin warned that excluding transgender people from military service could set a discriminatory precedent for the private sector.

“We certainly see there are all sorts of potential spillover effects—culturally, politically, legally—from the intent to end thousands of people’s careers because of who they are,” she said.

She pointed to the U.S. Department of Justice, which has already attempted to legitimize similar discrimination through the federal courts.

“Coverage of that has been overshadowed understandably by the military ban, but I do think that that’s in some ways every bit as significant,” she said.

Rewire reported that the Justice Department stopped defending Title IX of the Education Amendments Act of 1972 in transgender rights lawsuits pending in the courts. The Obama administration had argued on behalf of constitutional recognition of transgender rights, starting with federal agencies, then intervening in private plaintiff lawsuits like Gavin Grimm’s, the transgender teen who sought to use the public school bathroom that aligns with his gender identity.

The Trump administration in February reversed the Obama-era protections for transgender students like Grimm with Attorney General Jeff Sessions at the helm.

Trump’s military ban is perhaps the most public extension of administration-wide efforts to undermine President Obama’s slow, steady march toward transgender rights through the federal agencies. Much of Trump’s harm to transgender people and other vulnerable LGBTQ populations is occurring in the deepest recesses of agencies to which he nominated those opposed to any form of transgender rights. Trump in May issued an executive order that sets the stage for wide-scale LGBTQ discrimination despite campaign rhetoric characterizing himself as a “real friend” to LGBTQ people. 

The Obama administration bid farewell to the “outdated” ban on openly transgender service members in June 2016. By May 2017, a loophole in the Obama-era policy prevented two transgender cadets from commissioning in the military, according to a New York Times timeline; a month later, Mattis delayed the policy’s July 1 start date for new transgender recruits. Then came Trump’s infamous tweets in July.

“Maybe Donald Trump’s time at a fake military school has skewed his view of the military. But for those of us who have served, transgender service is not a problem,” the progressive veterans group VoteVets said in a statement. “In fact, when it allows the best into our military, it is an asset.

More veterans called on Mattis to protect trans troops.

“As American military veterans, we write to you today to emphatically state that Donald Trump’s ‘trans ban’ unquestionably fails your standard,” nearly 60 veterans implored in a recent open letter to Mattis.

“This policy will harm readiness and unit cohesion by removing troops from service who are integral, critical, and necessary members of their teams. It will prevent the Department of Defense from recruiting patriotic and qualified Americans with vital skills simply because of an identity that has no impact on their combat effectiveness. And perhaps most importantly, this reckless and bigoted trans ban forces service members to choose between living a lie to serve the country that they and we love, or maintaining the personal integrity that we all know to be a core value of military service.”