E. Barrett Prettyman U.S. Courthouse and William B. Bryant Annex, home to the D.C. Circuit Court of Appeals – Photo: Bin im Garten, via Wikimedia.
Five transgender service members have asked the U.S. Court of Appeals for the District of Columbia Circuit to maintain a preliminary injunction that prevents the Trump administration from banning a majority of transgender individuals from serving in the U.S. military.
The plaintiffs’ lawsuit, known as Doe v. Trump, contends that the proposed ban on transgender service members is both discriminatory, violating their rights to equal protection and due process under the Fifth Amendment, and does nothing to promote military readiness or foster unit cohesion — arguments that the government has attempted to use to justify such a ban.
The plaintiffs are being represented by the National Center for Lesbian Rights and GLBTQ Legal Advocates & Defenders. On Monday, GLAD Transgender Rights Project Director Jennifer Levi argued on the plaintiffs’ behalf before the D.C. Circuit.
In her arguments, she urged the court to keep in place a preliminary injunction, issued by Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia in October 2017, prohibiting the Trump administration from implementing the ban as long as it is being litigated in the courts.
Since that time, the Trump administration has asked Kollar-Kotelly three separate times to stay or dissolve the injunction, most recently on Nov. 30, 2018, when it asked for a stay while it asks the Supreme Court to take up the case before any lower court has issued ruling on the ban’s constitutionality.
In each instance, the Justice Department has argued that an implementation plan rolled out by Defense Secretary Jim Mattis in March 2018 is substantially different from President Trump’s June 2017 announcement, via Twitter, of a blanket ban on all transgender service members.
Unlike Trump’s categorical ban on transgender service members, the so-called “Mattis Plan” claims that only those out transgender individuals who have been either diagnosed with “gender dysphoria” or those who have undergone a “gender transition,” including receiving hormones or gender confirmation surgery, will be forcibly discharged.
According to the Trump administration and the Pentagon, the presence of out transgender service members is detrimental to military readiness, as they are not considered deployable at a moment’s notice.
But Kollar-Kotelly has repeatedly found that the “Mattis Plan” is no different from Trump’s categorical broad-based ban on transgender individuals, finding that it would only allow transgender individuals to continue serving if they effectively denied their identity.
“[T]olerating a person with a certain characteristic only on the condition that they renounce that characteristic is the same as not tolerating them at all,” Kollar-Kotelly wrote in her original ruling.
“The government is playing word games by arguing that transgender people can serve in their birth sex. That is a contradiction in terms,” Levi said in a statement following Monday’s oral arguments. “This is not a game. What’s at stake here is the lives of dedicated service members, who are willing and able to serve — and are prepared to make the ultimate sacrifice for their country.”
Doe v. Trump is one of four separate lawsuits currently challenging the proposed ban. In each of the cases, federal judges have issued nationwide preliminary injunctions blocking the Pentagon from implementing the “Mattis Plan.”
Those judges also found that the plaintiffs challenging the ban — whether service members, ROTC members, military academy students, or enlistees — would likely prevail on their claim that the ban is unconstitutional and violates their rights.
“Throughout this case, I have been privileged to meet and represent courageous young people who want nothing more than to meet the military’s high standards and to serve their country,” NCLR Legal Director Shannon Minter said in a statement. “Instead, they have been swept up in a discriminatory political firestorm that has nothing to do with either what’s best for the military or their ability to serve. Their futures and who we are as a country are at stake.”