November 24, 2017 at 12:26 pm PST | by Karen Ocamb
Are trans service members winning?

Stop Transgender Military Ban, Washington, DC, July, 29, 2017 (By
Ted Eytan via Flickr)

The LGBT community enters December with a slight breeze at their backs. On Tuesday, Nov. 21, a federal judge in Baltimore issued a preliminary injunction halting President Trump’s proposed transgender military ban. This follows a ruling last month in the U.S. District Court for the District of Columbia also imposing a preliminary injunction against enforcement of the Trump administration’s plan to prohibit transgender people from serving in the military. The rulings allow trans service members to continue serving on active duty but maintain the halt on all recruitment and promotions imposed by the Pentagon prior to Trump’s abrupt policy reversal. The Justice Department is appealing the DC ruling.

Judge Colleen Kollar-Kotelly set the tone in her strongly-worded 76-page Oct. 30 opinion, suggesting the ban—set to take effect in March 2018—was most likely unconstitutional. “There is absolutely no support for the claim that the ongoing service of transgender people would have any negative effective on the military at all,” Kollar-Kotelly wrote. “In fact, there is considerable evidence that it is the discharge and banning of such individuals that would have such effects.”

Additionally, she wrote that “a number of factors — including the sheer breadth of the exclusion ordered by the directives, the unusual circumstances surrounding the President’s announcement of them, the fact that the reasons given for them do not appear to be supported by any facts, and the recent rejection of those reasons by the military itself — strongly suggest that Plaintiffs’ Fifth Amendment claim is meritorious.”

On Tuesday in Baltimore, U.S. District Judge Marvin Garbis ruled that trans service members have “demonstrated that they are already suffering harmful consequences such as the cancellation and postponements of surgeries, the stigma of being set apart as inherently unfit, facing the prospect of discharge and inability to commission as an officer, the inability to move forward with long-term medical plans, and the threat to their prospects of obtaining long-term assignments.”

The ruling broadened the DC decision and clears the way for current transgender service members to receive surgical medical care.
Garbis also took a swipe at Trump’s “abrupt policy change” by tweet in his 53-page opinion. “A capricious, arbitrary, and unqualified tweet of new policy,” he wrote, “does not trump the methodical and systematic review by military stakeholders qualified to understand the ramifications of policy changes.”

To underscore the point, the judge also said that “President Trump’s tweets did not emerge from a policy review, nor did the [implementing] presidential memorandum identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest.”

Indeed, the judge said, Trump’s policy change actually runs counter to what military leaders have already said they want the policy to be on trans people serving in the military.

To put the proposed trans ban in a larger context: the all volunteer US military is currently engaged in seven countries —Iraq, Syria, Afghanistan, Pakistan, Yemen, Libya, Somalia—without explicit congressional approval. Additionally, the Defense Department is gearing up for a possible nuclear confrontation with North Korea.

Additionally, the ban on trans people serving in the military is being proposed by a president who avoided the Vietnam War because of bone-spurs— a point obliquely referenced by the federal judge in a hearing in Seattle.
The Oct. 30 case was brought by the National Center for Lesbian Rights and GLBTQ Advocates & Defenders. The Baltimore case was brought by the ACLU.  Two other cases are pending: Stockman v. Trump, brought by Equality California, seven individuals, and most recently, the State of California with a decision scheduled for Dec. 11; and Lambda Legal and OutServe-SLDN, who filed suit in the U.S. District Court for the Western District of Washington in response to Trump’s directions to military authorities Aug. 25. Their lawsuit focuses on the accession policy, representing two individuals who want to join the military and one current service member seeking a promotion, as well as the Human Rights Campaign and Gender Justice League, a gender and sexuality civil and human rights organization, headquartered in Seattle.

U.S. District Judge Marsha Pechman heard oral arguments Tuesday, Nov. 21, just hours after Garbis’ ruling in Baltimore. In addition to Lambda Legal and OutServe-SLDN, Washington State Attorney General Bob Ferguson also intervened in the case.

“Barring transgender individuals from serving based on anything other than their ability and conduct is wrong,” Ferguson said last September. In his motion to intervene, Ferguson argued that the trans ban “constitutes undisguised sex and gender identity discrimination that serves no legitimate purpose and its implementation will have significant, damaging impacts on the State of Washington and its residents.”
Pechman said she will issue her ruling Dec. 8.

“We are proud of the arguments we delivered to the court,” OutServe-SLDN President and CEO Matt Thorn told the Los Angeles Blade. “Judge Pechman has stated she intends to make her decision by December 8th and we are cautiously optimistic for a favorable outcome. We couldn’t be more thankful for our co-counsel Lambda Legal and the bravery of our 9 plaintiffs who have stood up and our leading the way for thousands of trans service members and those who wish to serve. It’s also a privilege to represent Gender Justice League of Washington, HRC and the American Military Partner Association.”

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