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Courts asked for ‘immediate intervention’ to block trans military ban

By Chris Johnson

September 05, 2017

Equality California announced it filed a lawsuit in U.S. District Court for the Central District of California on Sept. 5, bringing to four the number of legal groups seeking “immediate intervention” from a federal court to block President Trump’s ban on open transgender military service, enlistment and denial of medically necessary healthcare.

California is home to the largest concentration of servicemembers in the nation, while Equality California represents more than 500,000 members in the state, including transgender people directly affected by the President’s order. Latham & Watkins LLP is representing Equality California as plaintiffs in Stockman v. Trump, along with four named and three unnamed transgender plaintiffs, who are harmed by the ban. The three unnamed plaintiffs are active duty transgender servicemembers serving in the United States Army and Air Force

“President Trump has attacked American heroes who have risen above discrimination, hostility and lack of acceptance to serve our country by putting their lives on the line in its defense,” said Rick Zbur, executive director of Equality California. “His justification for the ban bears no relation to the truth. Contrary to what the President states, ejecting loyal members of the armed forces promotes chaos and division, not unit cohesion.”

In a 51-page legal brief, lawyers from GLBTQ Advocates & Defenders and the National Center for Lesbian Rights seek a preliminary injunction against enforcement of the ban, which Trump directed on Aug. 25.

“The ban marks transgender service members as unequal and dispensable, stigmatizing them in the eyes of their fellow service members and depriving them of the unique honor and status associated with uniformed service to their country,” the brief says. “Because the public has no interest in enforcing an unconstitutional policy and has every interest in the continued service of capable and dedicated service members, both the balance of the equities and the public interest weigh in favor of granting an injunction here.”

The case, Doe v. Trump, was filed Aug. 2 — after Trump announced the ban on Twitter, but before he issued guidance directing that course — by LGBT legal groups on behalf of five unnamed plaintiffs currently serving in the armed forces. The lawsuit was assigned to U.S. District Judge Colleen Kollar-Kotelly, a Clinton appointee.

The complaint was subsequently amended to included three additional plaintiffs to challenge the halted accession policy. Two are students: Regan Kibby, a midshipman at the U.S. Naval Academy, won’t be able to complete his education because of the indefinite ban on enlistment and Dylan Kohere is a college student at the University of New Haven just beginning ROTC training. The third unnamed plaintiff is serves in the Army.

“Absent this Court’s immediate intervention, their military careers and paths will be irreparably harmed,” the brief says. “The military requires strong bonds among unit members to maintain the trust and morale necessary to survive the stresses of military discipline, deployment, and combat. So too, students in the military academies and ROTC depend on the bonds they form during their education and training to build the foundation of relationships that determine their future military careers.”

“These plaintiffs are experiencing harms right now because of the prohibition against enlistment,” GLAD spokesperson Carisa Cunningham said. “The amended complaint adds plaintiffs who are experiencing clear, immediate harms because of the enlistment ban.”

The GLAD/NCLR brief argues that the transgender military ban is unconstitutional because discrimination on the basis of transgender status warrants strict scrutiny — a standard of review never explicitly granted to transgender people by the U.S. Supreme Court.

“Policies that expressly target transgender people meet all of the traditional criteria for a suspect classification that warrants strict scrutiny,” the brief says. “The Supreme Court has recognized that certain classifications are inherently suspect because they single out discrete groups that have historically and unjustifiably been oppressed.”

The filing also argues the ban warrants intermediate scrutiny because it amounts to sex discrimination and “cannot satisfy any level of review.”

GLAD/NCLR also argue that the ban: violates plaintiffs’ right to due process under the Fifth Amendment; lacks any rational basis; burdens plaintiffs’ right to autonomy; and penalizes plaintiffs for coming out as transgender after the previous ban on transgender service was lifted during the Obama administration in 2016.

“By dictating that certain members are not fit to serve based solely on their status as transgender people, the Commander-in-Chief of the Armed Forces has significantly undermined that cohesion and trust, which Plaintiffs may be unable to rebuild absent an order from this Court enjoining enforcement of the ban,” the brief says.

The brief also seeks to enjoin an existing accessions ban that was scheduled to expire in July as part of the military’s plan for open transgender integration.

“The Trump administration has now put it off indefinitely,” says Cunningham. “Because of that two of the new plaintiffs are experiencing immediate harms to their education and military careers.”

In addition to lawsuits filed by EQCA and GLAD/NCLR, OutServe-SLDN and Lambda Legal filed suit in a federal court in Washington State and the American Civil Liberties Union filed suit before a federal court in Maryland.

Additionally, former military and civilian leaders are speaking out, denouncing the new transgender military ban. Among them is former Army Secretary Eric Fanning, who’s served in civilian leadership positions for each branch of the armed forces and was the first openly gay person confirmed as Army secretary.

Fanning said in a statement that the working group that evaluated transgender open service under the Obama administration before the older ban was lifted determined “the discharge of highly trained and experienced service members would leave unexpected vacancies in operational units and require the expensive and time-consuming recruitment and training of replacement personnel.”

– Karen Ocamb contributed to this story.