By Jeff Lake
There are continuing developments in the struggle to overturn the transgender ban regarding military enlistment and service. This article will recap the history of this struggle and discuss current developments.
On July 26, 2017, President Donald J. Trump announced on Twitter that “the United States
Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military,” seeking to end a right to serve openly which President Obama had put in place.
Following Trump’s ‘order by Tweet,’ a Presidential Memorandum and DoD Implementing Memorandum were issued. The memoranda basically prohibited the accession of transgender recruits and stated that medical treatment for transgender servicemembers would only be provided until March, 2018.
The policy was immediately subject to court challenge across the county. On August 28, 2017, the
ACLU filed suit in Maryland. (Stone v. Trump.) GLBTQ Legal Advocates and Defenders (GLAD) and
National Center for Lesbian Rights (NCLR) filed suit in Washington, D.C. (Doe v. Trump.) Equality
California, joined by NCLR and GLAD, filed suit in California. (Stockman v. Trump.) Finally, the Lambda Legal Defense and OutServe-Servicemembers Legal Defense Network (SLDN) filed suit in federal court in Seattle. (Karnoski v. Trump.) All of these cases resulted in preliminary injunctions against the Trump transgender policy, and all are currently pending.
On March 23, 2018, the President issued another Memorandum regarding military service by transgender individuals. This Memorandum stated that he revoked his previous Memorandum of August 25, 2017. Instead, the President referred to a new Memorandum prepared by the Secretary
of Defense in consultation with the Secretary of Homeland Security.
The new policy, as outlined in the memo, banned transgender people from enlisting in the military and discharged those who attempted to transition while in the military. The memo did not adopt a policy of discharging those already serving who do not transition. This was a concession to the fact that that the courts would never allow such discharges after allowing transgender people to sign up and serve in the first place.
In November, 2018, the Justice Department petitioned the United States Supreme Court and asked that the injunctions in Washington State, California and Washington D.C. be stayed, claiming that it was “of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination.” The government’s motion to dissolve the injunction in Maryland was pending.
On January 22, 2019, the U.S. Supreme Court responded to the Justice Department’s petition from November. The court issued “Orders in Pending Cases” and stated that in both the Washington State and California cases, the injunctions were now stayed pending the disposition of the Government’s appeal in both cases. The Order noted that Justices Ginsburg, Breyer, Sotomayor and Kagan were not in agreement. Thus, the injunctions are now stayed by was of a simple unsigned order from the Supreme Court. The Maryland injunction was dissolved soon thereafter.
The Pentagon issued another Memorandum on March 12, 2019, outlining the current transgender ban policy. This Memorandum went into effect on April 12, 2019.
The Pentagon tried to sell the idea that the policy was not a ban. Instead, DoD explained that it simply states that all persons must meet the “standards associated with their biological sex.” Under the policy, “a history of cross-sex hormone therapy or a history of sex reassignment or genital reconstruction surgery is disqualifying.” In other words, transgender people can serve as long as they are not transgender. However, as observers had predicted, the policy does not make those who are already serving in their preferred gender subject to discharge and they can continue to serve.
The policy has been roundly criticized by Human Rights groups and by a wide variety of current and former servicemembers. The President of the American Medical Association issued the following statement: “The AMA has said repeatedly that there is no medically valid reason – including a diagnosis of gender dysphoria – to exclude transgender individuals from military service.” Since the announcement of the policy, the National Guard units of six states – California, Colorado, Nevada, New Mexico, Oregon and Washington — have announced that they will not comply with the ban.
On June 14, 2019, the Ninth Circuit filed its decision regarding the case from Washington State. The Court, as expected, dissolved the injunction against the ban. However, somewhat surprisingly, the court also ordered the District Court to again examine an injunction using the standard it adopted during the Don’t Ask Don’t Tell litigation. The court stated: “We conclude that the 2018 Policy on its face treats transgender persons differently than other persons, and consequently something more than rational
basis but less than strict scrutiny applies.” The court went on to say: “Defendants bear the burden of establishing that they reasonably determined the policy ‘significantly furthers’ the government’s important interests, and that is not a trivial burden.” It remains to be seen if this test will be applied to the other cases now pending and how it will affect the Washington case on remand.
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 transitionrelated 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 with challenges to the Implementation Plan announced in April. Discovery is continuing, so it is not clear when the case will proceed to trial.
Recently, the first waiver under the ban has been granted to Lieutenant Jane Doe. Lt. Doe was commissioned as a naval officer in 2010. She has served nearly 10 years in the navy and is committed to serve through 2026. She is the primary support for her family – which includes her spouse and two young children. In June, 2019, a military medical provider diagnosed Lt. Doe with gender dysphoria. As this diagnosis came two months after the transgender ban went into effect, Lt. Doe was immediately subject to discharge if she attempted to serve in her preferred gender.
After disclosing her diagnosis to her commanding officer, Lt. Doe requested a discretionary waiver in October, 2019. The Department of Defense has not provided any guidance as to the proper form or content for such a request. The DoD has also not provided any guidance on the criteria by which a waiver request will be evaluated or a timeframe in which it is to be adjudicated.
Given the complete lack of information concerning waivers, Lt. Doe filed suit in Federal Court in Massachusetts on March 17, 2020, for declaratory and injunctive relief which would allow her to continue to serve in the military and receive appropriate medical treatment. Represented by GLBTQ Legal Advocates and Defenders and the National Center for Lesbian Rights, the complaint alleged violations of the Equal Protection and Due Process clauses of the Fifth Amendment. A copy of the complaint can be found at <https://notransmilitaryban.org/wp–content/uploads/2020/03/ECF1_Complaint.pdf>. It is well worth reading.
On May 14, 2020, the military granted Lt. Doe’s request for a waiver. This is the first waiver granted in the year since the transgender ban has been in effect. As there has been no guidance, it is unclear why the military has granted the waiver. Shannon Minter, NCLR Legal Director, stated, “While we are relieved for our client, requiring transgender service members to jump through this discriminatory hoop makes no sense and only underscores the irrationality of the ban. Being transgender has nothing to do with a person’s fitness to serve, and transgender individuals should be held to the same standards as other service members.”
On June 5, 2020, the lawsuit was dismissed. Lieutenant Doe will now be listed as female in the Defense Enrollment Eligibility Reporting System.
In late June, the Pentagon sent a report to Congress regarding its Transgender policy. According to The Hill, which obtained a copy of the report, it states that 197 service members have been diagnosed with gender dysphoria since the policy took effect. Three people have been subject to processing for involuntary separation and two have been considered for waivers. (One has been granted – see above.) Twelve have been referred to the Disability Evaluation System for medical discharge or retirement. Regarding recruits, all 19 people were medically disqualified from enlisting or commissioning as an officer based on the policy. The Hill reports that the document prompted a letter from 12 House Democrats to Defense Secretary Mark Esper asking why more waivers were not considered or granted. The letter stated, “it is clear the administration’s policy towards transgender service members is effectively a ban.”
On June 15, 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County, Georgia, that Title VII of the Civil Rights Act prohibits employment discrimination on the basis of homosexuality or transgender status. Following this, 116 House Democrats wrote to Defense Secretary Mark Esper urging him to immediately change the current transgender policy and to urge the Justice Department to negotiate a settlement of all the pending lawsuits. The Representatives pointed out that the ruling will “provide significant weight” to the lawsuits.
Given the pace of the litigation, it appears that the transgender ban will remain in effect through the end of the year. It is clear that a majority of representatives in the Democratic Party are opposed to the ban. Thus, if the Democrats are elected to a majority in the Senate and the President is also a Democrat, it seems that the ban will be rescinded by legislation or by executive action.
Jeff Lake is Chair of the Military Law Task Force. He is in private practice in San Jose, California.