5 transgender service members sue Trump over military ban

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Matthias Schrader / AP

In this July 29, 2017 photo transgender U,S. Army captain Jennifer Sims poses at the main gate of the Joint Multinational Readiness Center after an interview with The Associated Press in Hohenfels near Regensburg, Germany.

Wed, Aug 9, 2017 (6:30 p.m.)

WASHINGTON — Five transgender people serving in the U.S. military sued President Donald Trump and top Pentagon officials Wednesday, asking that transgender troops be allowed to stay in the military.

The lawsuit was filed in response to Trump’s ban abruptly announced last month on Twitter.

The plaintiffs filed the lawsuit under pseudonyms — “Jane Doe” Nos. 1-5 — in the U.S. District Court for the District of Columbia. The case was organized by two rights groups, the National Center for Lesbian Rights and GLBTQ Legal Advocates & Defenders, or GLAD.

Other rights groups — like Lambda, Outserve and the American Civil Liberties Union — have also said they were preparing lawsuits but were holding off until the Trump administration takes a step to implement the ban, such as issuing formal guidance to the military or beginning the process of changing military rules.

But Shannon Minter, the legal director for the National Center for Lesbian Rights, said he believed the case was already ripe for a lawsuit because active transgender service members — such as those deciding whether to re-enlist — are already being harmed by the uncertainty created by Trump’s statements on Twitter.

“It is critical to act now because the harms are happening now,” Minter said. “These service members deserve to know where they stand.”

A 2014 study by the Williams Institute at the University of California, Los Angeles, estimated that about 8,800 transgender people were serving on active duty, with thousands more in the National Guard and reserve; a 2016 study by the RAND Corp. estimated that there were about 2,450 such active-duty troops.

In 2016, the Obama administration, after extensive study, lifted a prior ban on transgender troops. That permitted transgender members currently serving to come out openly; openly transgender people are set to be allowed to join the military starting next year.

But on July 26, without warning, Trump stated on Twitter that the government “will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.” The announcement caught the military off-guard, and there was no plan for what to do about those now serving openly.

Gen. Joseph F. Dunford Jr., the chairman of the Joint Chiefs of Staff, responded to Trump’s tweets by saying that the current policy about who was allowed to serve had not changed and would remain in place until the White House sent the Defense Department new rules and Jim Mattis, the defense secretary, issued new guidelines.

“In the meantime, we will continue to treat all of our personnel with respect,” Dunford said in a letter to the military service chiefs.

On Aug. 4, The Blade, a newspaper for lesbian, gay, bisexual and transgender people, reported, citing unnamed sources, that a policy guidance for reinstating the ban had been approved by the White House Counsel’s Office and by Trump and was expected to be delivered to Mattis.

Minter said that based on that report, “We wanted to move as quickly as possible to nip that in the bud.” The lawsuit’s complaint stated that “upon information and belief, the White House turned that decision into official guidance, approved by the White House Counsel’s Office, to be communicated to the Department of Defense.”

Still, as of Wednesday, the White House had yet to send any specific policy directive to the Pentagon, said Lt. Col. Paul Haverstick, a military spokesman. He said Dunford’s statement from two weeks ago remained in effect.

“There is no change,” he said. “We are still waiting for more guidance from the White House.”

The lawsuit complaint argued that banning transgender people from serving in the military would be unconstitutional discrimination, violating their rights to equal protection and due process. It also argued that the Pentagon could not end people’s military careers for coming out openly as transgender because they did so in relying on the Pentagon itself saying they would be permitted to serve.

Haverstick said the military was “aware of the lawsuit; however, we are not able to comment due to the pending litigation.”

Other rights groups preparing similar legal challenges said Wednesday that they were still holding off. Among them were both Outserve and Lambda, which have said they were recruiting plaintiffs for a joint lawsuit when the matter is ripe, a legal term meaning the facts of a case have developed enough for a decision.

“We have not yet filed suit, although we stand ready to do so,” Jon Davidson, the Lambda legal director, said Wednesday. “We have been awaiting confirmation that the White House has transmitted a final guidance, directive or other instructions to the Department of Defense, which, to the best of our knowledge, has not yet occurred.”

James D. Esseks, director of the ACLU’s Lesbian Gay Bisexual Transgender & HIV Project, said his group was also holding back but noted that it has sent a letter to the White House asking it to preserve all documents related to the matter in anticipation of future litigation.

Even if the administration has not yet transformed Trump’s Twitter announcement into policy, it remained possible that it will do so by the time a judge has to decide whether the new lawsuit is ripe for adjudication or should be dismissed, experts said.

Regardless, Minter expressed confidence that the suit had not been filed too quickly. He noted that defending against the case would force the White House to talk about the status of plans to reinstate the ban, and he argued that there was “no downside” to a strategy of moving ahead now.

“I don’t think we will get dismissed on ripeness because people are being harmed now,” he said. “But if we do, we will be right back as soon as there is any additional movement.”

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