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Two separate lawsuits are challenging the Trump administration’s decision to ban transgender individuals from serving in the U.S. Armed Forces.
In July, President Donald Trump took to social media to tweet about a proposed ban on transgender service members, but had not followed up those tweets with actual guidance advising leaders at the Pentagon on how to implement such a ban.
After weeks of speculation, on Friday evening, President Trump issued a memorandum to military leaders directing them to continue the current ban prohibiting those who are already “out” as transgender from being recruited and accepted into the Armed Forces.
But Trump’s memorandum goes a step further, prohibiting active-duty service members from acknowledging their transgender status and obtaining appointments as officers.
Trump’s guidance directs the Departments of Defense and Homeland Security to develop plans for how best to deal with transgender service members who came out under the more trans-friendly policies put into place by the Obama administration. It also prohibits the use of federal dollars to cover transition-related health care expenses.
The first suit against the policy was filed by Lambda Legal and OutServe-SLDN in U.S. District Court for the Western District of Washington on behalf of two transgender people who wish to join the military and one currently serving Army staff sergeant, as well as the Human Rights Campaign and Gender Justice League, a Seattle-based civil rights organization, on behalf of their transgender members.
The lawsuit argues that the ban, and the military’s current policy prohibiting out transgender recruits from enlisting, violates the plaintiffs’ rights under the Fifth Amendment’s Due Process Clause by denying transgender people equal protection based on “sex-related considerations,” including gender identity and gender nonconformity.
The lawsuit also argues that the ban “impermissibly burdens” and “chills” the exercise of the plaintiffs’ free speech rights and freedom of association by prohibiting transgender people from revealing their true identity. By discriminating against transgender members because of their embrace of their identity or their advocacy on behalf of transgender rights, the Armed Forces, and by, extension, the government, are engaging in viewpoint discrimination.
“This ban not only wrongfully prevents patriotic, talented Americans from serving, it also compromises the safety and security of our country,” Peter Renn, a senior attorney for Lambda Legal, said in a statement. “Thousands of current service members are transgender, and many have been serving openly, courageously and successfully in the U.S. military for more than a year — not to mention the previous decades when many were forced to serve in silence.
Renn continued: “Once again attacking a vulnerable population based on bias, political opportunism and demonstrably untrue ‘alternative facts,’ President Trump is denying brave men and women the opportunity to serve our country without any legitimate justification whatsoever.”
The second lawsuit, filed in Maryland by the American Civil Liberties Union, on behalf of the ACLU of Maryland and five currently serving transgender service members, argues that the ban denies transgender people equal protection under the law and discriminates based on both sex and transgender status. The lawsuit also claims the ban is based on uninformed speculation, myths, and stereotypes, as well as moral disapproval, directed at an already vulnerable minority.
“Each and every claim made by the President Trump to justify this ban can be easily debunked by the conclusions drawn from the Department of Defense’s own review process,” Josh Block, a senior staff attorney with the ACLU’s LGBT & HIV Project, said in a statement. “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. Men and women who are transgender with the courage and capacity to serve deserve more from their commander-in-chief.”
The Trump administration is already facing a third lawsuit brought by the National Center for Lesbian Rights and GLTBQ Advocates & Defenders on behalf of five other transgender military members — all women, who have filed anonymously for fear of retribution — that seeks to stop the White House and the Pentagon from implementing any ban on transgender service members.
It remains unclear what action, if any, Congress can — or would, given its partisan leaning — take to prevent the Trump administration from carrying out the ban.
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