August 28, 2017 at 1:12 pm PST | by Chris Johnson
Lawsuits filed against Trump over trans military ban

President Trump is facing two new lawsuits over his plan to ban transgender military service. (Washington Blade file photo by Michael Key)

Now that President Trump has officially directed the Pentagon to enact a ban on transgender military service, a coalition of LGBT groups on Monday filed two separate lawsuits against him over the policy.

One complaint was filed in federal court in Seattle by Lambda Legal and the LGBT military group OutServe-SLDN. The plaintiffs in the lawsuit, Karnoski v. Trump, are two transgender people who wish to serve in the military — Ryan Karnoski and an unnamed high school student — as well as Staff Sergeant Cathrine Schmid, a transgender woman currently in the U.S. Army who has served for more than 12 years; the Human Rights Campaign; and the Seattle-based Gender Justice League.

Sarah McBride, who’s transgender and serves as national press secretary for the Human Rights Campaign, said in a statement the U.S. military “is stronger when any qualified American willing to defend our country is able to serve, regardless of their gender identity.”

“It is an unconscionable and unconstitutional breach of trust for the president to single out brave transgender service members and able recruits for discrimination,” McBride said. “The harm that this administration is causing to both these courageous Americans and our national security must be stopped.”

The other complaint was filed in federal court in Maryland by the American Civil Liberties Union and the D.C.-based law firm Covington & Burling LLP. The plaintiffs in that lawsuit, Stone v. Trump, are five transgender troops currently in the military representing each of the military branches: Petty Officer First Class Brock Stone, Senior Airman John Doe, Airman First Class Seven Ero George, Petty Officer First Class Teagan Gilbert, and Marine Corps Technical Sergeant Tommie Parker.

Stone, the lead plaintiff in the lawsuit, has served in the U.S. Navy for nine years, including a nine-month deployment to Afghanistan. According to the lawsuit, Stone was awarded an achievement medal for his deployment as well as multiple other commendations, including a flag letter of commendation and multiple recommendations for early promotion.

The lawsuits were filed just days after Trump directed the Pentagon and the Department of Homeland Security, which operates the U.S. Coast Guard, to reinstate the ban on transgender military service lifted under the Obama administration. Trump’s ban forces openly transgender people out of the armed forces, makes a delay on allowing transgender people to enlist permanent and denies payment for gender reassignment surgery under the U.S. military health system.

Both lawsuits filed Monday contend Trump’s transgender military ban violates the equal protection amd due process rights of transgender people under the Fifth Amendment.

The ACLU lawsuit contends every component of Trump’s ban “singles out transgender service members for different treatment” amounting to sex discrimination, which is subject to, and fails, heightened scrutiny under the Fifth Amendment.

“As a result of the Transgender Service Member Ban, men and women who are transgender, including Individual Plaintiffs, have suffered, or will imminently suffer, a violation of their right to substantive due process because, due to their transgender status, and without any reasoned basis, they are denied an opportunity to demonstrate their continued fitness for duty; their ability to enlist in the U.S. Armed Forces despite being fit to serve; and/or the opportunity to receive medical care on an equal basis as service members who are not transgender,” the complaint says.

But the lawsuit filed by OutServe-SLDN and Lambda Legal argues the military ban violates not just the Fifth Amendment right to due process, but also the First Amendment right to free speech of people who openly identify as transgender.

“The purpose and effect of the Ban and current accessions bar are to chill constitutionally protected First Amendment activity,” the lawsuit says. “Indeed, the Memorandum on its face demonstrates that it is directed at suppressing the gender expression and related expressive conduct of transgender individuals, including that of the individual plaintiffs and transgender members of the organizational plaintiffs, and those individuals’ disclosure of their transgender status.”

Both lawsuits discuss the methodic detail with which former Defense Secretary Ashton Carter over the course of one year under the Obama administration examined the issue of transgender service — a process that included commissioning a study by the RAND Corp. that found no drawbacks either to military readiness or medical costs.

In contrast, Trump announced on Twitter he’d ban transgender people from the military after an apparent lack of consultation with military leaders. According to the lawsuit from OutServe-SLDN and Lambda Legal, a White House official told news media President Trump said his announcement “would stop the lawyers from arguing with him anymore” against reinstating a ban on transgender military service.

Josh Block, senior staff attorney with the ACLU’s LGBT & HIV Project, said in a statement all aspects of Trump’s proposal to ban transgender people from the U.S. military “can be easily debunked by the conclusions drawn from the Department of Defense’s own review process.”

“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,” Block said. “Men and women who are transgender with the courage and capacity to serve deserve more from their commander-in-chief.”

The lawsuit seeks a court ruling finding the trans military ban violates the U.S. Constitution and an injunction ensuring transgender people can serve in the armed forces; not be denied promotion or face adverse treatment solely because of their gender identity; and have access to transition-related health care.

The new litigation comes on the heels of a policy memo from the San Francisco-based Palm Center, which disputes reports in the media that Trump’s transgender policy is a watered-down version of an outright ban.

The memo, drafted by five military professors, contends Trump’s transgender policy, in fact, is a total ban because it reinstates the old policy prior to the Obama-era change. The only narrow question left open, the memo says, is what will happen to transgender people currently in the armed forces who came out after that time.

“The Secretaries only have a narrow window of discretion to decide the individual fates of currently serving transgender personnel, who in the best case would be permitted to serve under separate standards that apply only to them, under a general presumption that they are unfit to serve, and with no assurance that their permission to remain will endure,” the memo says.

Trump as well as Defense Secretary James Mattis, who’s charged with implementation of the new transgender military ban, are named defendants in both the lawsuits. Also named in the ACLU lawsuit are each of the civilian heads of the military departments.

Lt. Col. Paul Haverstick, a Pentagon spokesperson, confirmed the Defense Department is aware of the lawsuits, but declined further comment.
“The Department of Defense is aware of the lawsuit filed today challenging the President’s decision regarding military service by transgender individuals,” Haverstick said. “Questions about the litigation should be directed to the Department of Justice.”

The Justice Department didn’t immediately respond Monday to the Washington Blade’s request for comment on the lawsuits.
A White House spokesperson declined to comment on the basis of a general policy of not commenting on litigation.

Another lawsuit filed by the National Center for Lesbian Rights and GLBTQ Advocates & Defenders was filed before Trump’s directive and remains pending before a federal court in D.C.

Shannon Minter, legal director of the National Center for Lesbian Rights, said the plaintiffs in the case this week intend to file a motion for a preliminary injunction to block implementation of Trump’s ban as litigation is underway.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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