Trump administration fights back against lawsuit over transgender military ban
The Trump administration has defended its transgender military ban – by pointing out that courts upheld Don’t Ask Don’t Tell, a now-repealed ban on gay soldiers.
Donald Trump’s Defense Secretary James ‘Mad Dog’ Mattis is pushing ahead with the administration’s plans to ban transgender people from the military.
In the face of multiple civil rights lawsuits, Trump officials are pushing ahead with plans to block recruitment of any military personnel who identify as transgender and ‘purge’ existing soldiers from next year.
The federal government filed a brief defending its actions in response to one of the lawsuits today, the first time it has leaped to the defence of the ban.
The Justice Department filed the response on behalf of Trump in the United States District Court for the District of Columbia.
The 44-page brief calls for the court to dismiss a request for an immediate injunction against the ban.
Incredibly, the document cites court rulings in favour of Don’t Ask Don’t Tell – which banned gay people from the military – as precedent for banning trans people.
Implemented in the 1990s, Don’t Ask Don’t Tell survived a number of court challenges before it was repealed by lawmakers under President Obama
The brief cites it as case law, insisting: “Courts have upheld exclusionary policies in the military while at the same time invalidating similar policies in the civilian sphere.
“Of course, there are limits: no amount of deference could save the military’s decision to exclude a race or religion from being considered under the strict scrutiny standard.
“But outside those extreme examples, the military’s policies are entitled to a ‘healthy deference’ their civilian counterparts do not enjoy.”
The brief also argues that the President should have the “freedom [to decide] who may serve in the armed forces”.
It adds: “A variety of physical and mental conditions presumptively bar entry into the armed forces, including asthma, history of severe migraines, discrepancies in leg-length resulting in a limp, or any curvature of the spine that would prevent one from wearing a uniform properly.
“Reasonable people could disagree over whether these individuals should be able to serve. But that does not mean that the President or military leadership harbors animus towards these individuals.”
The lawsuit also claims that the President’s announcement that the government “will not accept or allow transgender individuals to serve in any capacity in the U.S. Military” was not actually an announcement of a new policy, despite it reversing the policy of the Obama administration.
It claims :”Plaintiffs cannot claim that the President imposed a new requirement; instead, he declined to relax longstanding policy without further study.
“All the President has done is preserve the status quo ‘until such time as a sufficient basis exists upon which to conclude’ that ending the
accessions policy would not result in harm to the military.
“The President has the authority to insist on further study before a significant change to military personnel policy, and Plaintiffs cannot show otherwise, let alone obtain an injunction to halt such study.
“And certainly no Plaintiff can credibly sustain a claim for emergency relief as to a policy whose current version has been in place without modification for nearly six years.”
Elsewhere it adds: “Because Plaintiffs lack standing and their claims are not ripe, the Court should not consider Plaintiffs’ motion for a preliminary injunction.
“The Court’s review of Plaintiffs’ preliminary injunction motion should begin and end with a consideration of whether they are likely to suffer irreparable injury.
“To show that a preliminary injunction is warranted, Plaintiffs must demonstrate ‘that irreparable injury is likely in the absence of an injunction’, regardless of the likelihood of success on the merits of their claims.
“They cannot do so.
“As Plaintiffs’ potential injuries are all employment-related, they could be remedied by the Court at a later date and are thus not irreparable.”
The brief continues: “To the extent Plaintiffs seek to attack the ongoing policy-making process, their claims similarly lack merit.
“The President’s decision that the complex issues presented by the policy on military service by transgender individuals warrant additional study before changes are made to longstanding policies passes constitutional muster under any standard.
“Even if the Court could somehow review the military’s current maintenance of its longstanding accessions policy, the policy would withstand constitutional challenge.
“Likewise, until the future policy concerning transgender service is resolved and implemented, Plaintiffs cannot show they are likely
to succeed on their due process or estoppel claims.”
Jennifer Levi, Director of GLAD’s Transgender Rights Project hit back: “The government’s response reads like pure fiction.
“It states a fantasy that the President’s announcement of a ban on military service for transgender people has changed nothing.
“That’s simply not true. Every day this reckless ban stays in place, our military strength is diminished and our country is less safe for it.
“We are optimistic the Court will see through this smokescreen and halt the ban.”
Shannon Minter, National Center for Lesbian Rights Legal Director, said: “The President’s attack on transgender service members who have dedicated their lives to serving our country is unconscionable.
“Rather than even attempting to defend it, the DOJ is asking the court to turn a blind eye to the devastation the President has caused in the lives of real people and real families.
“Because of the President’s ban, smart, dedicated, and idealistic young people like our plaintiffs Regan Kibby and Dylan Kohere are barred from fulfilling their dreams of military service. And transgender people who are already serving have been told that their skills, training, and years of dedicated service are not valued.
“The ban has left them scrambling to make new plans for their futures, just as it has undermined our nation’s security. This is the exact opposite of how military policy should be made.”
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ACLU attorney Chase Santiago, who previously represented transgender whistleblower Chelsea Manning when she was denied the right to transitioned, announced a filing last month.
He said: “We are filing a motion for a preliminary injunction asking the court to put an immediate stop to the President’s ban to ensure that the harms to our clients and the thousands of other transgender individuals serving our country are rectified immediately.
The ACLU official added “Individuals like our client Staff Sgt. Kate Cole should not have to worry about whether their job, health care, entire life is on the line— not because of the risks inherent in the work she has so bravely taken on, but due to the political whims of her commander in chief pandering to a base that would like to see her very existence erased.
“Staff Sgt. Cole has served in the military since she enlisted at 17. She has deployed to Afghanistan, Estonia, Latvia, Lithuania, and Poland. This work, her service, is the only job she has ever known, and she has devoted her life to it.
“Now her medical care has already been cancelled and she risks losing everything. And for what? Because the president decided to do the military ‘a favour’ and end transgender service without having to study it.
“Transgender people are not pawns in a political game. Our lives, our health care, our work cannot be erased with a tweet.
“We will not let that happen, and we are heading to court to stop it.”