Metro Weekly

Groups challenging trans military ban respond to Trump administration’s motion to dismiss

Filings in California case rehash arguments that led a judge to issue an injunction in a separate lawsuit against the ban

The Pentagon. Photo: Department of Defense – Photo: Master Sgt. Ken Hammond, U.S. Air Force, via Wikimedia.

The groups behind a lawsuit out of California challenging President Trump’s ban on transgender service members have filed a response to the Department of Justice’s request to dismiss their case because the plaintiffs have not yet suffered any “injury” under an interim policy set to expire in March 2018.

Yet this isn’t new ground for the National Center for Lesbian Rights and GLBTQ Legal Advocates & Defenders, who successfully argued, in a separate lawsuit based out of Washington, D.C., for an injunction to stop the Pentagon from implementing Trump’s transgender ban until the issue is resolved in the courts. In that case, Doe v. Trump, Judge Colleen Kollar-Kotelly, of the U.S. District Court for the District of Columbia found that there was sufficient reason that transgender plaintiffs would suffer injury by the policy, which would prohibit transgender people from serving in “any capacity” in the U.S. military.

The Trump administration has argued, both in the Doe case, and the California case, known as Stockman v. Trump, that the plaintiffs have no standing to sue because the interim policy left in place by the Pentagon allows transgender individuals to serve and re-enlist for new tours of duty through February 2018. Therefore, any “injury” they purport to have suffered is speculative at best. But NCLR and GLAD argue in their response to the administration that the mere threat of a ban or forcible discharge once the ban is implemented is disrupting the lives of its clients, which include both active-duty service members and potential recruits who wish to enlist, and Equality California, on behalf of its transgender members across the state.

“Defendants contend that Plaintiffs will suffer no ‘injury in fact’ or ‘irreparable harm’ until the government actually discharges them, or, in the case of the plaintiffs seeking to enlist, denies them accession into the military,” the response brief reads. “As the United States District Court for the District of Columbia recently held, these jurisdictional arguments ‘wither under scrutiny.’

“Under settled law, enlisted Plaintiffs have standing to challenge a policy that facially targets them and is set to take effect on a date certain: March 23, 2018. Similarly, Plaintiffs who seek to enlist have standing to challenge a policy, already in effect, that bars their enlistment. That Defendants continue to work on plans to implement the ban and have issued Interim Guidance does not make the facially discriminatory ban any less subject to challenge or its harms any less immediate.”

The Stockman plaintiffs and their lawyers echo the same arguments they made in the Doe case, as does the government. Specifically, the lawyers for the plaintiffs argue that the ban singles out transgender people for separation or exclusion from the military solely based on their gender identity, not on their ability to serve. As a result of that, these transgender plaintiffs can suffer the loss of career opportunities and medical care. 

“Trump’s not playing with toy soldiers — these are real people whose lives are at stake,” Jennifer Levi, GLAD’s Transgender Rights Project Director, said in a statement. “Thousands of transgender Americans are currently serving in our armed forces, and these highly trained, dedicated, and courageous service members have been experiencing real harms since Trump’s impulsive Twitter announcement.”

“Last week, we secured a nationwide injunction that halts Trump’s ban,” NCLR Legal Director Shannon Minter said in a statement. “Right now, every transgender service member is protected, and qualified transgender Americans who wish to enlist can do so as of January 1, 2018. But we know this battle is not over — every federal court that declares this ban unconstitutional moves us closer to a permanent end to this nightmare for our dedicated and courageous service members.”

The Stockman case is scheduled to be argued in court on Nov. 20 in federal court in Riverside, Calif. The lawsuit is also being supported by former military members who believe the ban will hurt military readiness, national security, and unit morale, including former Chairman of the Joint Chiefs of Staff Michael Mullen, former Secretary of the Army Eric Fanning, former Secretary of the Navy Raymond Edwin Mabus, Jr., and former Secretary of the Air Force Deborah Lee James. All four have filed declarations with the court highlighting the problems they see with allowing the ban to go forward unchallenged.

A third lawsuit challenging the ban, brought by the American Civil Liberties Union, will be argued in federal court in Baltimore on Thursday, Nov. 9 at 10:30 a.m. The plaintiffs in that case are also seeking a preliminary injunction stopping the Pentagon from implementing Trump’s preferred policy. 

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