ACLU, Lambda Legal and OutServe-SLDN sue the President

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Jersey City, NJ Transgender March on February 3 2017. Photo by B. Nick.
File phot: Jersey City, NJ Transgender March on February 3 2017. Photo by B. Nick.

Lambda Legal and OutServe-SLDN filed a joint federal lawsuit challenging the constitutionality of the Trump administration’s ban on transgender individuals serving in the military. Meanwhile, the ACLU in Maryland filed another suit challenging the ban. The Lambda lawsuit — brought in response to the President’s formal issuance of directions to military authorities late Friday — was filed on behalf of two individuals who seek to join the military and one current service member who seeks appointment as an officer. Others involved in the suit include the Human Rights Campaign, headquartered in Washington, D.C., and Gender Justice League, headquartered in Seattle.

The American Civil Liberties Union and Covington & Burling LLP filed another lawsuit against the President’s administration, challenging the directive. Their lawsuit specifically addressed banning transgender service members from continuing to serve in the military or receiving medically necessary health care, and also the ban on men and women who are transgender from enlisting.

Transgender flagThe lawsuit was filed on behalf of the ACLU of Maryland and five current members of the armed forces who are transgender: Petty Officer First Class Brock Stone, Senior Airman John Doe, Airman First Class Seven Ero George, Petty Officer First Class Teagan Gilbert, and Technical Sergeant Tommie Parker.

In the lawsuit, the ACLU argues that the ban violates the constitutional guarantees of equal protection and substantive due process by singling out transgender individuals for unequal and discriminatory treatment. The lawsuit argues that the ban discriminates based on sex and transgender status and that the ban is based on uninformed speculation, myths and stereotypes, moral disapproval, and a thinly veiled intent to harm this already vulnerable group.

“Each and every claim made by the President Trump to justify this ban can be easily debunked by the conclusions drawn from the Department of Defense’s own review process. Allowing men and women who are transgender to serve openly and providing them with necessary health care does nothing to harm military readiness or unit cohesion,” said Josh Block, senior staff attorney with the ACLU’s LGBT & HIV Project. “Men and women who are transgender with the courage and capacity to serve deserve more from their commander-in-chief.”

The Department of Defense concluded in 2016 that there was no basis for the military to exclude transgender individuals from openly serving their country, subject to the same fitness requirements as other service members. The review process carefully considered and rejected the notion that medical costs, military readiness, or other factors presented any reason to discriminate against transgender service members, many of whom had already been serving with honor in silence for years.

For example, Petty Officer First Class Brock Stone has served in the U.S. Navy for nine years, including a nine-month deployment to Afghanistan. He received extensive and costly training and is skilled in his field. He has devoted and risked his life for the United States and is seeking nothing more than the ability to continue to do so on the same terms as his fellow officers.

The other individual plaintiffs are:

  • Staff Sergeant Cole has served in the U.S. Army for almost 10 years, including a one-year deployment to Afghanistan where she served as a team leader and designated marksman.
  • Senior Airman Doe has served for approximately six years on active duty in the U.S. Air Force, where he was awarded “Airman of the Year” for his flight and hopes to serve in the armed forces for his entire career.
  • Airman First Class George is a member of the Air National Guard. He is training as a nurse and intends to pursue a commission in the U.S. Army.
  • Petty Officer First Class Gilbert has served in the U.S. Navy for 13 years, including a one-year deployment to Afghanistan, and currently serves as an Information Technology specialist.
  • Technical Sergeant Parker served in the Marine Corps for four years and has served in the Air National Guard for 16 years, currently as a fuel technician.

The plaintiffs are represented by the ACLU, the ACLU of Maryland, and Covington & Burling LLP.

“This ban not only wrongfully prevents patriotic, talented Americans from serving, it also compromises the safety and security of our country.”

“Thousands of current service members are transgender, and many have been serving openly, courageously and successfully in the U.S. military for more than a year,” Lambda Legal Senior Attorney Peter Renn said about their lawsuit. “Not to mention the previous decades when many were forced to serve in silence. Once again attacking a vulnerable population based on bias, political opportunism and demonstrably untrue ‘alternative facts,’ President Trump is denying brave men and women the opportunity to serve our country without any legitimate justification whatsoever.”

“We promised that we would sue if the president took this action. The law is on our side; justice is on our side,” said Peter Perkowski, legal director for OutServe-SLDN. “And we are on the side of every single transgender service member and those who want to serve. The nation’s courts exist to protect the people whom tyrants would otherwise abuse. Trump can’t tweet his way out of this one.”

Lambda Legal and OutServe-SLDN filed the lawsuit in the U.S. District Court for the Western District of Washington. The individual plaintiffs, all of whom are transgender, include Ryan Karnoski, a 22-year-old Seattle man who currently works as a social worker and wishes to become an officer doing social work for the military; Staff Sergeant Cathrine (“Katie”) Schmid, a 33-year-old woman and 12-year member of the U.S. Army currently serving in Joint Base Lewis-McChord in Washington, who has applied to become an Army Warrant Officer; and Drew Layne, a high-school student from Corpus Christi, Texas, who is about to turn 17 and, with parental support, wants to join the Air Force. HRC and Gender Justice League have joined the lawsuit on behalf of their transgender members who are harmed by the ban.

“Our military is stronger when any qualified American willing to defend our country is able to serve, regardless of their gender identity,” said HRC National Press Secretary Sarah McBride. “It is an unconscionable and unconstitutional breach of trust for the president to single out brave transgender service members and able recruits for discrimination. The harm that this administration is causing to both these courageous Americans and our national security must be stopped. We are proud to be a plaintiff on behalf of our transgender members currently serving or wishing to enlist or commission, but who find their careers and their future under attack – and we thank all of the plaintiffs, Lambda Legal and Outserve-SLDN for their leadership in challenging this dangerous directive.”

“Gender Justice League has been advocating for the dignity that all people deserve. At a time when transgender people are facing alarming rates of discrimination, violence and lack of access to housing and medical care, this blatantly discriminatory ban is a slap in the face to our members,” said Danni Askini, Executive Director of Gender Justice League. “We have made strides in Washington state to put this kind of government-sanctioned discrimination behind us. This ban stands against our state’s values that all Washingtonians deserve the same rights and freedoms guaranteed under the Constitution.”

On July 26, President Trump posted a series of tweets in the early morning hours announcing that, “The United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.” The tweet was widely condemned by more than 56 retired generals and admirals and a large percentage of Republican and Democratic U.S. senators and representatives.

Despite that criticism, the White House proceeded to issue a memorandum directing the military to continue the ban on enlistment by those they learn are transgender, even though our armed forces currently are facing recruitment challenges, including in high-demand positions like linguists, health care providers, social workers and aviators. The enlistment ban also bars transgender members of the military currently serving openly, such as Staff Sergeant Schmid, from obtaining appointments as officers. The memorandum further orders the return to past anti-transgender policies affecting continued service and medical care of those known to be transgender after the development of an implementation plan by the Secretary of Defense.

Staff Sergeant Schmid said, “I love serving my country, which I’ve been doing for more than 12 years. Since the ban on open service by transgender men and women was lifted, I’ve been able to live and serve as my authentic self, which has allowed me to form stronger bonds with my fellow service members.”

“This ban is disrespectful and dishonorable to the thousands of transgender men and women who are boldly and bravely serving our country,” added Lambda Legal Staff Attorney Sasha Buchert, herself a transgender military veteran. “It deprives our armed forces of those wanting to serve at a time when the military is already facing threats on multiple fronts. It also is disrespectful to the leadership at the Department of Defense who worked to develop and implement the current policy allowing open service, which has been operating successfully for more than a year.”

The government-commissioned RAND study released in May 2016 determined that the cost of providing transition-related care is exceedingly small relative to U.S. Armed Forces overall health care expenditures, that there are no readiness implications that prevent transgender members from serving openly, and that numerous foreign militaries have successfully permitted open service without a negative effect on effectiveness, readiness or unit cohesion. Based on that study, the Pentagon lifted the ban on open service by transgender men and women in July 2016.

The Lambda lawsuit is Karnoski v. Trump.

The Lambda Legal attorneys working on the case are: Peter Renn, Jon W. Davidson, Camilla B. Taylor, Tara Borelli, Natalie Nardecchia, Sasha Buchert, Kara Ingelhart, and Carl Charles. They are joined by co-counsel Peter Perkowski of OutServe-SLDN. Also on the legal team are pro-bono co-counsel at Kirkland & Ellis LLP and Newman Du Wors LLP.