Lawyers representing the plaintiffs in a fourth lawsuit challenging President Trump’s transgender military ban have asked a federal court to issue a preliminary injunction to stop the ban from being enforced. If allowed to go through, they argue, the ban would cause “irreparable harm” to transgender individuals currently serving in the military and to those who wish to enlist in the future.
The plaintiffs, which include four active-duty service members and three prospective recruits who wish to enlist in the U.S. military, are being represented by Equality California, the National Center for Lesbian Rights, and GLTBQ Legal Advocates & Defenders. Equality California is also suing the government on behalf of its nearly 500,000 members, including transgender people who will be impacted by the ban.
NCLR and GLAD previously filed a similar motion for a preliminary injunction in U.S. District Court for the District of Columbia in the case of Doe v. Trump, which was the first of the four lawsuits opposing the ban to be filed.
In the California case, known as Stockman v. Trump, which was filed in U.S. District Court for the Central District of California, lawyers for the plaintiffs made similar arguments to those made in the other three cases. Namely, they argue that the policy is discriminatory under the Due Process Clause of the Fifth Amendment, which prohibits the federal government from denying equal protection to a class of people based on shared group characteristics that have no impact on an individual person’s ability to serve.
The plaintiffs argue that the ban warrants “strict scrutiny” — the most stringent standard by which courts resolve conflicts between an individual’s constitutional rights and the government’s interest in promoting a certain policy — because targets a politically vulnerable, historically disfavored community. This argument has been used in previous cases where courts have ruled against government actions aimed at suppressing or denying recognition of LGBTQ individuals’ rights, as in the 1996 landmark gay rights case of Romer v. Evans.
They also claim the ban discriminates against transgender people on the basis of their gender identity, infringes upon their rights by penalizing them for expressing a fundamental aspect of their personal identity, and punishes those transgender service members who came out only after they were promised that they could serve openly under the Obama administration.
“California is home both to the nation’s largest population of LGBTQ people and to the largest number of service members,” Rick Zbur, the executive director of Equality California, With his unnecessary and unjust ban, President Trump has attacked American heroes who simply want to serve their country. This ban will tear apart lives and livelihoods, cost taxpayers hundreds of millions of dollars and deprive the military of loyal, talented service members — it will not stand.”
The Stockman lawsuit is also being supported by several former top military leaders, who have filed declarations in support of the motion for the preliminary injunction. Those declarations, which have also been filed in other lawsuits challenging the ban. detail how the ban harms transgender service members and their families, and how it compromises national security and military readiness.
The leaders filing those declarations include retired Admiral Michael Mullen, the former Chairman of the Joint Chiefs of Staff; Eric Fanning, the former Secretary of the Army; Raymond Edwin Mabus, Jr., the former Secretary of the Navy; Deborah Lee, the former Secretary of the Air Force; the former Acting Under Secretary of Defense for Personnel and Readiness and former Congressman Brad Carson (D-Okla.), and former Deputy Surgeon General for Mobilization, Readiness, and Army Reserve Affairs Margaret Chamberlain Wilmoth.
“When I led our armed forces under ‘Don’t Ask, Don’t Tell,’ I saw firsthand the harm to readiness and morale when we fail to treat all service members according to the same standards,” Mullen writes in his declaration. “There are thousands of transgender Americans currently serving and there is no reason to single them out to exclude them or deny them the medical care that they require. Moreover, I strongly believe that we should not return to the days of ‘forc[ing] young men and women to lie about who they are in order to defend their fellow citizens.'”
Jennifer Levi, director of GLAD’s Transgender Rights Project, says there is no formal schedule for when the court will consider the motion, but the plaintiffs had asked for a hearing on Oct. 30, which may or may not happen, depending on the government’s response.
“There’s been requested delays by the government in the other cases, and it’s possible that the government would seek some kind of delay in this case as well,” she says. “But the next step would be the government filing its response [to our motion], and then a hearing, and then a decision.”
Under current guidance released by the Pentagon last month, transgender service members whose terms are up prior to March 2018 will be allowed to re-enlist, but will not subsequently be able to after that date. During that time, they will also continue to receive any necessary medical care they have earned as part of their health benefits. Meanwhile, military experts will be studying ways to implement a ban on out transgender service members and, after adopting a final plan, will put it into action starting in March.