Metro Weekly

Trans military ban challengers’ brief slaps down Trump administration’s claims

Brief explains how the ban harms the transgender community, and why the court should stop it from taking effect

Photo: Eric Draper, White House, via Wikimedia.

Lawyers from the National Center for Lesbian Rights and GLTBQ Legal Advocate & Defenders have filed a brief in Doe v. Trump, one of two cases challenging President Trump’s ban on transgender service members. In that brief, the plaintiffs attempt to dismantle the Trump administration’s motion to dismiss their lawsuit and claims that transgender individuals have not been harmed by the ban.

The administration points to interim guidance that temporarily keeps the Obama-era policy of open service in place, and allows transgender people to re-enlist, through February 2018, as evidence that the ban has done no harm. But both NCLR and GLAD argue that the interim guidance issued by the Pentagon does not sufficiently protect transgender service members from suffering irreparable harm. As such, they have doubled down on their request for a preliminary injunction to stop the ban from taking effect in March 2018.

In their brief, the lawyers for the plaintiffs slap down the government’s contention — made in its own motion to dismiss the initial lawsuit — that the interim guidance somehow insulates the proposed ban from being challenged. 

“Defendants would have this Court believe that, despite these extraordinary actions, nothing has changed and no one has been harmed,” the brief reads. “Defendants’ argument is based on the fanciful notion that Interim Guidance issued to paper over the wreckage caused by the ban somehow insulates the President’s order from judicial review. Only with this sleight of hand can the Defendants ignore the devastation wreaked on the lives of transgender service members and their families.

“As a result of the ban, Plaintiffs face irreparable harm to their military careers, their reputations, their futures, and their status as equal members of society. As set forth below, Plaintiffs have standing to bring their claims, the issue is ripe for adjudication, and the standards for issuance of preliminary relief have been met.”

Specifically, the plaintiffs’ lawyers point out that nothing in the interim guidance prevents the ban from taking effect starting on March 23, 2018. Even under the interim guidance, qualified transgender Americans are prohibited from joining the military or enrolling in service academies or ROTC programs. The plaintiffs also point out that the Trump administration has issued a number of conflicting instructions about health care for transgender troops, leading to greater confusion and delayed care.

Lastly, there is nothing in the ban that prevents transgender service members from being deemed unfit or forcibly discharged for reasons that are unrelated to their qualifications, capabilities, or past performance. With the ban looming ahead, transgender individuals must choose between leaving the military now to find another way of financially supporting themselves, or foregoing income while the challenge to the ban works it way through the courts. That’s why, the plaintiffs argue argue, the courts must resolve the issue now and issue an injunction to stop the ban from taking effect.

“The [Trump] Administration can’t hide from the consequences of its actions,” Jennifer Levi, one of two lead attorneys in the case and the director of GLAD’s Transgender Rights Project, said in a statement. “They brand transgender people unfit for service but want the Court to believe that nothing has changed for transgender service members on the front lines. There is no question that banning transgender people from military service harms them. President Trump’s ban must be stopped before it does any more damage to our troops and our military.”

“Thousands of transgender service members and their families cannot afford to wait,” added lead attorney Shannon Minter, the legal director for NCLR. “This administration demeans and degrades those who have given decades of exemplary service to our country or who have dreamed for years of enlisting but are banned from doing so for reasons that have nothing to do with ability or qualifications. We need our courts to provide these Americans and their families with swift justice.”

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