By | October 20, 2019

BY JEFF LAKE

Since the last issue of On Watch, several developments have occurred regarding the President’s attempt to ban military service by transgender people.

In July, 2019, Representative Jackie Speier introduced an amendment to the National Defense

Authorization Act.  This amendment states that qualifications for military service may not include “any criteria relating to the race, color, national origin, religion, or sex (including gender identity or sexual orientation) of an individual.”  This amendment has now passed the House of Representatives, with 10 Republicans joining the Democrats.  This amendment now proceeds to the Senate.

During the debate on the amendment, Jennifer Levi of GLBTQ Legal Advocates and Defenders and

Shannon Minter of the National Center for Lesbian Rights published an editorial titled: “Reversing Trump’s Transgender Military Ban Will Make Us Stronger.”  GLAD released a statement that concluded, “Military leaders and the American people see this ban for what it is – baseless discrimination that weakens our military.”  NCLR’s statement concluded, “Allowing transgender people to serve on equal terms in our nation’s military will only make our military and our nation stronger.”  These statements have stirred some controversy among progressives.  While progressives support inclusion of all and oppose discrimination, the argument that the U.S. should have a strong military is not an effective progressive argument against the transgender ban.  It seems this tension between these two positions will continue going forward.

The summer of 2019 has also seen two confirmation hearings for nominees for Chair of the Joint Chiefs of Staff and Chief of Naval Operations.  In connection with his hearing, General Mark Milley stated that he was “not aware of significant impacts to unit readiness based on transgender persons serving in the Army.”  He also stated that “any reduction in fully deployable service members that meet all medical standards would presumably have a detrimental effect on readiness.”  Similarly, Vice Admiral Mike Gilday in his written comments for confirmation stated, “I am unaware of negative impacts on unit or overall Navy readiness as a result of transgender individuals serving in their preferred gender.”  Thus, the military’s top commanders have undermined the stated rationale for the military transgender ban.

Finally, on August 20, 2019, the U.S. District Court in Maryland issued its decision concerning motions filed by both the plaintiffs and defendants in the case of Stone v. Trump brought by the ACLU.  

The District Court Judge was clear that he felt there was a significant distinction between the ban that was announced in 2017 and the current Implementation Plan.  He stated, “Thus, while the Implementation Plan bars many transgender individuals from military service, it is not the blanket transgender service ban set forth in the August 2017 Memorandum.  Thus, the court concludes that Defendants have established a significant change in the factual circumstances.”

After making this conclusion, the court went on to dismiss all claims regarding the August 2017 ban as moot.

After finding the claims regarding the prior ban moot, the court went on to dismiss all Current Service Members from the lawsuit, except one.  Thus, Brock Stone and by association the ACLU, have been dismissed from the lawsuit.  However, the court found that all Prospective Service Members do have standing to sue over the Implementation Plan.  The court presented a lengthy analysis of its reasoning concerning Current Service Members’ standing to sue such that it seems unlikely that the court’s ruling could be subject to a successful appeal by the DoD.

As to the one remaining Current Service Member, the court found that he has undergone transition-related surgery and is currently eligible for a commission.  The Implementation Plan would bar such a commission.  Thus, the court found that he “establishes an injury in fact sufficient to give him standing to challenge the Implementation Plan.”

Finally, the court addressed the Defendants’ motion to dismiss.  The court denied the motion, stating,

“the Court concludes that Plaintiffs plausibly allege that the Implementation Plan violates (the) Equal Protection component of the Fifth Amendment’s Due Process Clause.”  The court also concluded that the Plaintiffs’ claims warranted heightened scrutiny, “with the appropriate level of deference to the military’s evaluation of the evidence underlying the Implementation Plan.”  However, the court warned, “the level of deference to which Defendants are entitled in this case remains to be seen.”

The court found for the Defendants that the Plaintiffs did not adequately allege a substantive due process claim.  The court dismissed this claim, but did so without prejudice.

Thus, the lawsuit will continue on with challenges to the Implementation Plan announced in April.  Discovery is continuing, so it is not clear when the case will proceed to trial.

As always, the MLTF will continue to follow developments regarding this issue.  Please subscribe to On Watch to learn about the latest news and court rulings.

Jeff Lake is Chair of the NLG Military Law Task Force.  He is in private practice in San Jose, California.