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The NAACP Legal Defense and Educational Fund has filed an amicus brief urging the 9th U.S. Circuit Court of Appeals to rule that President Trump’s ban on transgender service members is unconstitutional, and to issue a permanent injunction to stop it from taking effect.
In the brief, the NAACP LDF compares the justifications being used by the Trump administration and Pentagon leaders to those justifications used to keep African-Americans from serving in integrated military units in the 1940s. They note that in both cases, the military attempted to push a policy for which there was no practical rationale, and that ultimately cost the military, in terms of both lives and money.
“The ban on transgender military service is not just about the right to fight, it’s about full equality as guaranteed by the Constitution,” LDF Assistant Counsel Daniel Harawa said in a statement. “By prohibiting Black people from serving their country, the U.S. government denied them equal citizenship. The government now seeks to do the same to transgender people. It was unconscionable and unconstitutional to allow prejudice to drive policy then, and it’s no different today.”
LDF notes that the U.S. government commissioned studies to study both the racial segregation policy and the transgender ban, and found that both policies did not improve unit cohesion and morale, and were not essential to ensuring military readiness. As a result, both were eventually overturned, with President Truman signing an executive order to integrate the Armed Forces, and President Obama’s Secretary of Defense, Ash Carter, issuing a directive ending the prohibition on transgender service members.
“The military’s history of racial discrimination is important to understanding the ban precluding openly transgender people from service,” LDF writes in its brief.
“In its brief, the Government provided three reasons why the Administration reinstated the ban against openly transgender people serving in the military. The Government first claims that openly transgender troops would pose ‘significant risks to military readiness.’ It next asserts that allowing openly transgender individuals to serve ‘would inevitably undermine . . . good order, discipline, steady leadership, unit cohesion, and ultimately military effectiveness and lethality.’ The Government finally justifies the ban by arguing that the previous policy permitting openly transgender Americans to serve in the military was ‘proving to be disproportionality costly on a per capita basis,'” LDF continues.
“Not only are these the same justifications that the previous administration found baseless just two years ago, they are almost identical to the justifications the military used to discriminate against Black soldiers more than half a century ago. The Government once claimed that allowing Black people to serve equally alongside whites would be ‘detrimental to the preparation for national defense,’ hurting ‘military readiness.’
“The Government also said that integration would hurt ‘unit cohesion’ and would be ‘destructive to morale.’ And the Government once provided a cost-related reason for discriminating against Black service members: it would be too costly to provide ‘poorly educated’ Black troops the training necessary to allow them to serve equally alongside whites. In short, the Government is recycling the kind of justifications once used to discriminate against African Americans, which were proven false, to justify discriminating against transgender people.”
In July 2017, President Trump announced a categorical ban on transgender service members serving in the U.S. military “in any capacity.” Almost immediately, LGBTQ advocates lodged four different lawsuits — in Washington State, California, Washington, D.C., and Maryland — challenging the ban’s constitutionality. The courts found that the advocates had a likelihood of succeeding in their case, and issued temporary injunctions preventing the Pentagon from implementing the policy.
In April 2018, after months of defeats in court, Secretary of Defense Jim Mattis issued a “deploy or get out” policy that kept many restrictions on transgender people in place, but allowed a select few to remain in the military, provided that they had not undergone transition, either via hormones or surgery, had not been diagnosed with gender dysphoria, and were still living their lives in their assigned sex at birth.
Subsequent rulings have found that this policy is essentially no different than the earlier categorical ban on transgender service members, leading judges to keep the existing injunctions in place. No court has yet determined whether the ban is unconstitutional on the merits, but the 9th Circuit is expected to rule in the coming weeks.
“Because the courts did not intervene, it took the Executive Branch correcting its own practices to end the military’s discrimination against Black people. Here, while the Executive once corrected its history of discriminating against transgender Americans, it has now doubled-back. This Court should step in,” LDF concludes.
“The Supreme Court has repeatedly found that discriminatory classifications by the federal Government violate the Constitution. And the Court has consistently held that governmental actions based on unsupported and prejudiced rationales offend the Constitution. Distilled to its essence, that’s what we have here — a policy not founded in fact but based in unconstitutional bigotry.”
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