On Wednesday, August 9, 2017, five active-duty service members filed a lawsuit against President Trump regarding his plan to institute a ban on transgender people from serving in the military.
In response to his stated intention, five anonymous “Jane Does” filed suit, claiming that the order to implement a ban on service by transgender individuals is in violation of both the Equal Protection element of the Fifth Amendment and the Due Process Clause of the Fifth Amendment to the U.S. Constitution.
The plaintiffs are:
- A member of the Coast Guard who has drafted a future letter of resignation;
- An active-duty 20-year member of the Air Force who served two times in Iraq; and
- Three soldiers in the Army
The National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates and Defenders (GLAD) are advocating on their behalf. Trump declared in a succession of tweets on July 26, 2017 that the U.S. government will not permit transgender persons to serve in the military. However, the military has not released a policy explaining the way in which that mandate would be accomplished.
In June 2016, the Obama administration repealed the ban on transgender troops, and since then, hundreds of service members have been openly serving. According to a study conducted by the Rand Corp., and authorized by the Pentagon last year, there are approximately 11,000 transgender troops in the reserves, and serving on active duty in the military.
Trump’s decision puts an end to the furtherance of rights for lesbian, gay, bisexual and transgender people in the U.S. military that started with the revocation of the “don’t ask, don’t tell” policy in 2010. Trump’s explanation for his decision was the inability of the military to assume responsibility for the increased medical expenses and the disturbance that transgender troops would create. However, Trump’s declaration has caused Republicans and Democrats in Congress to be worried about the expansive scope of Trump’s directive.
Republicans critical of Trump’s decision
One critic of Trump’s policy change is Senator John McCain (R-Ariz.), the chairman of the Senate Armed Services Committee, who disagreed with terminating “don’t ask, don’t tell” in 2010. Sen. McCain took issue with the way in which Trump expressed his message, and its ramifications for transgender members on active duty. McCain said it was inappropriate for important announcements regarding policy to be made via Twitter.
He also stated that any American who was in compliance with medical and readiness guidelines should be permitted to continue serving, and that it is unreasonable to compel service members who have the ability to engage in combat, training and deployment, to exit the military, notwithstanding their gender identity. In addition to McCain, Republican Sens. Orrin G. Hatch (Utah), Joni Ernst (Iowa), an Army veteran, and Richard C. Shelby (Ala.) put forth statements that cast doubt on Trump’s decision.
Trump faced pressure from conservative Republicans
Trump’s tweets on the subject may well be in response to lobbying on the part of conservative Republicans to revert to the policy in place prior to the time of the Obama administration. He posted his tweets on the subject just weeks following the rejection by the House of an amendment to the annual defense policy bill that would have prevented the Pentagon from providing gender-transition therapies to members on active duty. However, conservative legislators, several of whom are members of the House Freedom Caucus, had warned that they would refuse to back a spending bill if Congress did not forbid the Pentagon from financing the procedures. The deadlock jeopardized government spending, and possibly held up funds that had been earmarked for the border wall between the United States and Mexico.
Comments from a military attorney
Military attorney Matt C. Pinsker, who is also a criminal defense attorney and an Adjunct Professor at Virginia Commonwealth University, offered his comments on the transgender ban. Pinsker says “the implications of a transgender ban for those currently serving would be an Honorable Discharge.” “Or they would be grandfathered in and permitted to continue serving.” He also states “a ban is unlikely to have any effect on civilian employment following military service.”
Additionally, “a ban is very unlikely to affect eligibility to receive veterans’ benefits.” Pinsker went on to say that a transgender person “should not join the military” because “you are dependent on medications, and without them, your physical or mental health suffers, endangering not just your own well-being, but that of those depending on you. (This also eliminates people with heart conditions, diabetes and ADHD).”
Plaintiffs relied on change in policy
Each of the plaintiffs said they acted in reliance on the 2016 change in policy when they informed commanding officers that they were transgender. They are requesting that the court hold that Trump’s objective is in violation of the pledge the government made to military members. The lawsuit claims that since they described themselves as transgender as a result of defendant’s prior promise, plaintiffs are now bereft of the security and confidence they possessed with respect to their careers and benefits. Such benefits include post-military and retirement benefits that are dependent on the duration of their service. More lawsuits are expected to follow upon the official issuance of the ban.