NULR of Note

On July 26, 2017, President Trump announced a directive on Twitter that would ban transgender individuals from serving in the military. This decision reversed a policy approved under the Obama Administration that would allow transgender military personnel to openly serve. President Trump cited the “tremendous medical costs and disruption that transgender in the military would entail” as his rationale for this ban.

The RAND Corporation estimates that there are between 1,320 and 6,630 transgender personnel serving in active duty, and between 830 and 4,160 in the Selective Reserve. On August 25, 2017, President Trump formally ordered the Department of Defense to reverse the Obama Administration’s policy, stating that the military will be indefinitely barred from accepting new transgender troops, and new “trans-related medical treatments” will be blocked.

In response to President Trump’s initial announcement on Twitter, the National Center for Lesbian Rights and GLBTQ Legal Advocates & Defenders filed a federal lawsuit challenging the order on behalf of five transgender service members with nearly sixty years of combined military service. On October 30, 2017, in Doe v. Trump (D.D.C. 2017), the U.S. District Court for the District of Columbia issued a preliminary injunction of the ban. Judge Colleen Kollar-Kotelly wrote that the plaintiffs are likely to succeed in their argument that the transgender ban violates their guarantee to equal protection afforded by the Due Process Clause of the Fifth Amendment.

The court found that the plaintiffs had standing to fight two issues arising from the directive. First, the directive injured future transgender individuals who would be denied the opportunity to enter the military. Second, the President’s policy requires the military to authorize the discharge of all current transgender service members by March 23, 2018, which includes the plaintiffs in this suit.

The court next applied intermediate scrutiny to evaluate whether the plaintiffs are likely to succeed in their equal protection claims. Although the court explicitly acknowledged that it was “aware of no binding precedent on this issue,” it noted that transgender individuals “appear to satisfy the criteria of at least a quasi-suspect classification” because of their immutable and distinguishing characteristics, as well as the history of transgender individuals facing discrimination. The court also noted that intermediate scrutiny applies because the directives discriminate based on gender and transgender individuals’ failure to conform to gender stereotypes.

The defendants argued that the directives satisfy intermediate scrutiny because “some transgender individuals suffer from medical conditions that could impede the performance of their duties,” the military has discretion to decide that certain medical conditions “may limit the deployability of transgender individuals as well as impose additional costs on the armed forces,” and it is reasonable for the President to conclude that transgender individuals in the military would harm unit cohesion. The District Court rejected these rationales, concluding that these reasons “appear to be hypothetical and extremely overbroad,” and stating that the President’s proffered reasons were “actually contradicted by the studies, conclusions and judgment of the military itself.” Intriguingly, the opinion also cites to the President’s abrupt announcement on Twitter, which was posted without any formality or deliberative process, as additional support that this decision was “not driven by genuine concerns regarding military efficacy.”

Plaintiffs’ lawyer Shannon Minter celebrated the ruling, stating that it was “a complete victory for our plaintiffs and all transgender service members who are now once again able to serve on equal terms and without the threat of being discharged.”

Steve Vladeck, a professor at the University of Texas School of Law, noted that the ruling was significant because it recognizes the consequences of the President’s words and tweets, and it is based on a conclusion that the Constitution limits the government’s ability to discriminate against transgender people. In fact, some advocates argue that the opinion is even more important because the decision to apply heightened scrutiny may create momentum for the judicial protection of transgender rights.

Press Secretary Sarah Huckabee Sanders told reporters that the Justice Department was evaluating the holding and deciding whether to appeal. However, scholars have questioned the President’s success on appeal. Carl Tobias, a professor at the University of Richmond School of Law, argued that the only chance of getting the preliminary injunction reversed would require going all the way to the Supreme Court because “[i]f they go to the D.C. Circuit, I can’t imagine they are going to overturn this. . . . The judge was strong in her opinion.”

Whether or not this case will be upheld remains to be seen. However, in the interim, the holding has made transgender troops like Air Force Staff Sergeant Logan Ireland cautiously optimistic about the future.

“We want to go back to serving,” Ireland said. “There are troops that work under me, there is work to be done.”