President Trump’s recently announced plan to bar transgender people from the armed forces isn’t yet policy, but LGBT legal groups have already initiated a lawsuit seeking to enjoin enforcement of the ban.
The 15-page complaint was filed Wednesday in the U.S. District Court for the District of Columbia by National Center for Lesbian Rights and GLBTQ Legal Advocates & Defenders on behalf of five anonymous transgender service members identified as “Jane Doe.”
Although the Pentagon has said there would be “no modifications” to transgender service until further guidance from the White House, the lawsuit — known as Doe v. Trump — maintains Trump’s announcement “upset the reasonable expectations of plaintiffs and thousands of other transgender service members and the men and women with whom they serve and fight.”
“Execution of the president’s directive will result in an end to service by openly transgender service members and has already resulted in immediate, concrete injury to plaintiffs by unsettling and destabilizing plaintiffs’ reasonable expectation of continued service,” the lawsuit says.
This undermining of transgender service members’ expectation of continued military service amounts to a violation of the right to equal protection and due process under the Fifth Amendment of the U.S. Constitution, the lawsuit alleges.
Also violated by the intent to ban transgender people from the U.S. armed forces, the complaint says, is the legal doctrine of estoppel — a legal doctrine against making assertions contradictory to a previously held position. Trump’s transgender military ban violates estoppel, the lawsuit says, because the Obama administration assured transgender people the ability to serve last year by lifting the medical regulation barring their service.
The complaint seeks a declaration Trump’s proposed ban on transgender military service is unconstitutional and an injunction barring it from going into effect.
Shannon Minter, a transgender legal expert and legal director for the National Center for Lesbian Rights, said in a statement the harms of Trump’s proposal to ban transgender military service are already clear.
“Trump’s directive to exclude transgender people from military service has created a tidal wave of harms that have already been felt throughout our armed services,” Minter said. “Transgender service members have been blindsided by this shift and are scrambling to deal with what it means for their futures and their families. The president’s mistreatment of these dedicated troops will serve only to weaken and demoralize our armed forces.”
Each of the five anonymous transgender plaintiffs behind the lawsuit, whose identifies are withheld for fear of retribution, serve in various capacities in the armed forces. One is a U.S. Army soldier who has previously been deployed to Afghanistan and expects deployment soon to Iraq. Another is an active duty airman who has serve in the U.S. Air Force for almost 20 years and has undertaken multiple tours of duty abroad, including two in Iraq.
“Last year, the Department of Defense announced that transgender people could serve openly,” one anonymous plaintiff said in a statement. “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. I am married and have three children, and the military has been my life. But now, I’m worried about my family’s future.”
Jennifer Levi, director of GLAD’s transgender rights project, said in a statement the service of each of these transgender troops is valuable and the nation would be hurt by removing them.
“The Commander in Chief has said that transgender service members — people who have served our nation with honor and distinction — are no longer welcome to serve,” Levi said. “This unjustifiable reversal of policy is devastating to these soldiers and harmful to our country. These plaintiffs put their lives on the line every day for all of us. We can’t afford to lose a single one of them.”
The named defendants in the lawsuit are Trump, Defense Secretary James Mattis, Chair of the Joint Chiefs of Staff Gen. Joseph Dunford, the secretaries for each of the military services and acting Secretary of Homeland Security Elaine Duke, who oversees the U.S. Coast Guard.
A Justice Department spokesperson said the department hadn’t yet been served with the complaint in the case.
“When we are served with the complaint, we will review it and defend the administration’s position,” the spokesperson said.
Spokespersons for the Defense Department and the Department of Homeland Security said they can’t comment on litigation as a matter of policy. A White House spokesperson referred the Washington Blade to the Justice Department.
Although Trump’s announcement via Twitter he’ll ban transgender people from the armed forces infuriated LGBT rights supporters, the policy isn’t new. A ban on transgender service persisted through medical regulation began in the 1980s and through seven-and-a-half years of the Obama administration before former Defense Secretary Ashton Carter changed the policy.
Levi told the Blade her organization is suing at this time, after withholding legal action under the previous ban, because the situations are different.
“The Obama administration said it was open to changing the policy,” Levi said. “And it did in fact go to great lengths to engage all branches of the military in reviewing and revising policy. The result was thoughtful change and extensive revision and implementation of military rules and regs. It was a way better way to get to the right result.”
The lawsuit filed by GLAD and the National Center Lesbian Rights isn’t the only legal initiative planned against Trump’s anti-trans military policy. Lamdba Legal and the LGBT military group OutServe-SLDN have also pledged to take Trump to court over the ban.
Matt Thorn, executive director of OutServe-SLDN, said his organization is awaiting an actual change in policy from the Trump administration before taking legal action.
“Until the White House goes beyond a tweet, which is not federal policy, there is no status change to transgender service members, as was reinforced by the Chairman of the Joint Chiefs of Staff Joseph Dunford,” Thorn said. “Should this White House give a directive or guidance to the Department of Defense that changes, modifies or even slightly alters the current policy we will swiftly challenge them in court.”