ACLU Sues White House Over Transgender Soldiers BanBy
White House policy sets up another social issues showdown
ACLU, gay-rights group argue ban violates U.S. Constitution
President Donald Trump was sued twice on Monday over his plan to ban transgender soldiers from the U.S. military, setting the stage for more bruising court battles about a directive from the White House.
The suits by the American Civil Liberties Union and the Human Rights Campaign, filed in federal courts in Baltimore and Seattle, claim Trump’s plan violates the Equal Protection clause of the Constitution. The groups seek court orders barring enforcement of the ban and preventing transgender service members from being discharged, blocked from promotion or denied medical care.
The ban is "purely political," the ACLU said, "reflecting a desire to placate legislators and advisers who bear animus and moral disapproval toward men and women who are transgender."
An Aug. 25 White House memo gave Defense Secretary James Mattis six months to return to the military’s previous policy barring transgender soldiers. Trump ordered the military to immediately stop paying for transition-related medical expenses, unless a service member’s health was in jeopardy.
The Maryland suit was assigned to U.S. District Judge Marvin J. Garbis, an appointee of President George H. W. Bush. The Seattle case hasn’t been assigned yet. No hearings have been scheduled.
"We do not comment on active or pending litigation," Ninio Fetalvo, a White House spokesman, said in an email seeking comment on the suits.
The dispute was triggered by a three-part Tweet by Trump on July 26, in which the president said he needed to reverse his predecessor’s transgender policy to protect military readiness and reduce waste.
“After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military," Trump tweeted. "Our military must be focused on the decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you.”
The HRC, a gay-rights group, said in its complaint that Trump’s policy was "unsupported by any compelling, important, or even rational justification."
The ACLU’s suit seeks to address each of Trump’s stated concerns, using government-backed studies, an analysis of transgender-related costs and the apparent readiness of several U.S. allies that allow transgender soldiers to serve openly.
Trump has inflamed U.S. cultural wars since his election victory, pushing back on his predecessor’s liberal polices and pleasing his conservative base. His executive orders have targeted immigration, while his Justice Department started a review of affirmative action in colleges and joined a suit to halt the spread of gay rights in the workplace. The president’s policy proposals have also hinted at fights over abortion and doctor-assisted suicide.
The plaintiffs in the ACLU suit include Petty Officer Brock Stone, 34, who has served in the U.S. Navy for 11 years, including a nine-month deployment to Afghanistan, and Staff Sergeant Kate Cole, 27, who has served in the U.S. Army for almost 10 years, including a year in Afghanistan where she was a team leader and designated marksman.
The Department of Defense concluded in 2016 that there was no basis for the military to exclude transgender men and women from serving openly, subject to the same fitness requirements as other Americans, the ACLU said. New transgender recruits were due to be permitted to enlist on July 1, it said.
The lawsuits may be undermined by Trump’s decision to give Mattis authority to decide on a case-by-case basis whether to exempt some soldiers from the ban, said Thomas Spoehr, director of the Heritage Foundation’s Center for National Security.
"When the first tweet came out of the White House it sounded like everyone was going to be thrown out across the board," Spoehr said in a phone call, referring to transgender soldiers. "The policy coming out now seems to be a little more nuanced. That probably takes some of the wind out of the lawsuits’ sails."
Thousands of transgender Americans serve in the armed forces, putting themselves in harm’s way to protect the rights and freedoms in the U.S., the ACLU said in the complaint.
"Some perform critical roles in intelligence analysis, disaster relief, medical care, and pre-deployment training at bases in the United States," the organization said. "Others have deployed to combat zones in Iraq and Afghanistan."
Trump’s claim that allowing transgender Americans to serve openly would harm unit cohesion is undermined by the experiences of soldiers in 18 countries were they’re allowed to serve, including Canada, Australia, Germany and Israel, the suit says. That was the conclusion of a RAND Corporation study that investigated the matter for the Obama administration, according to the ACLU.
Spoehr, who served in the U.S. Army for 36 years before joining the Heritage Foundation, said there aren’t enough transgender soldiers in the military for the RAND study’s conclusion to hold water. He also said transgender people report higher instances of suicide and physiological issues, and that keeping them out of the military might be better for their health and safety.
"What we’re proposing is going back to the old policy," he said. "This is just going back to the way things were versus a change. I think that’s been lost on a lot of people."
Five members of the armed forces earlier this month sued Trump and his top military brass seeking to halt the reversal of the transgender policy put in place by the Obama administration. The new suit by the ACLU adds significant resources to the fight as the organization has seen its membership swell since Trump’s election.
The ACLU case is Stone v. Trump, 17-cv-02459, U.S. District Court, District of Maryland (Baltimore), and the Human Rights Campaign suit is Karnoski v. Trump, 17-cv-01297, U.S. District Court, Western District of Washington (Seattle).