Civil rights groups are ready to bring President Donald Trump to court if his plan to ban transgender people from serving in the military becomes reality.
The White House has yet to provide detailed information on how the policy will be implemented, but civil rights groups and LGBT advocates are already preparing for a legal battle.
“I’m hoping that this is nothing more than one more attempt at distraction,” said Jon Davidson, legal director at Lambda Legal. “If it actually were to become the policy, there will be whiplash at how fast we sue.”
Trump tweeted Wednesday that “after consultation” with “generals and military experts,” the government “will not accept or allow transgender individuals to serve in any capacity in the U.S. military.” He tweeted the military “cannot be burdened with the tremendous medical costs and disruption that transgender[s] in the military would entail.”
Davidson said any potential lawsuit by Lambda Legal would be filed in conjunction with OutServe-SLDN, which represents LGBTQ service members and veterans. It’s unclear if Trump’s so-called “Twitter policy” would apply to those now enlisting and anyone already serving in the military, who would be discharged. Davidson said the case could involve plaintiffs facing both situations, and there’s potential for a class action suit.
Jennifer Levi, director of the Transgender Rights Project at GLBTQ Legal Advocates & Defenders, known as GLAD, said her organization is “exploring the range of legal options” available should the policy materialize. Still, Levi cautioned “it’s a long way from a tweet to a revision of policy.”
“It’s impossible to predict what [Trump's] next steps would be, and it’s hard to predict how it would actually change policy,” Levi said. She added that the U.S. Department of Defense has been researching ways to include transgender service members for years.
The American Civil Liberties Union also appears to be considering legal action. In a written statement, senior staff attorney Joshua Block implored any service members affected by the announcement to “please get in touch with us, because we want to hear from you.”
In June 2016, President Barack Obama and Defense Secretary Ash Carter announced a change in standing policy for transgender people serving in the armed forces. The announcement included a one-year plan to allow transgender people to enlist and immediately made it so service members could no longer be discharged for being transgender. Last month, Defense Secretary Jim Mattis delayed the July 1 deadline to begin enlisting transgender people by six months.
POTENTIAL CLAIMS AND VENUES
If the policy does materialize, Davidson outlined several claims Lambda Legal would consider. They included equal protection under the 14th Amendment and due process under the Fifth Amendment. Another option might be the Administrative Procedure Act, which bars the government from making “arbitrary and capricious” decisions.
Davidson also said that if Trump’s policy requires discharging transgender people already in the military, the theory of estoppel could apply. Estoppel is a legal claim someone can bring if induced to take an action that’s later used against them.
“Having told trans people ‘You can serve openly’ and trans people then came out in the military, the government can’t use that against them,” Davidson said.
Anthony Kreis, an attorney who’s worked on LGBT rights cases and is a professor at Chicago-Kent College of Law at Illinois Institute of Technology, said there are several precedents in the federal circuit courts where LGBT people successfully brought claims under the 14th Amendment. He pointed to a 2011 decision in the U.S. Court of Appeals for the Eleventh Circuit in which the court ruled for a transgender woman fired from the Georgia General Assembly for her plans to transition.
He said a similar case is likely to see success in liberal leaning circuits or those that have already ruled for transgender protections, including the Seventh, Fourth and Ninth Circuits.
“That’s really a promising avenue given the trajectory of recent equal protection jurisprudence,” said Kreis.
BURDEN OF PROOF
Should the government face such a case, U.S. Department of Justice lawyers would likely need to show that Trump’s reasons — that allowing transgender people in the military is “disruptive” and that the medical costs are burdensome — are credible.
Dan Woods, a partner at Musick Peeler & Garrett in Los Angeles, is familiar with the disruption logic. In 2010, Woods won a case challenging the constitutionality of the military’s “don’t ask, don’t tell” policy after a two-week trial. Disruption, Woods said, was the government’s main claim for keeping the policy in place.
In that case, Log Cabin Republicans v. United States of America, Woods and his team used studies the government itself had done to show that open service was not disruptive, as well as studies by foreign countries who were allies of the United States and whose troops served with U.S. troops. Woods also included testimony from military members whose units were disrupted because of the departure of talented soldiers, discharged only because of their sexual orientation. He also deposed a military member who claimed that using the same sink after a shower as a homosexual man would make him uncomfortable.
“I said, ‘You’d prefer to violate the constitutional rights of these people instead of just putting a towel around your waist?’ and that kind of just shut him up,” Woods recalled.
There’s also the question of the financial strain on the military. A widely cited 2016 study by the Rand Corp. estimated there were roughly 1,320-6,630 active transgender service members and that yearly, between 29 and 129 service members would seek transition-related medical care. At most, the costs would amount to roughly “0.13 percent ($8.4 million out of $6.2 billion) increase in health care spending,” the study said. An analysis by The Washington Post pointed out that total yearly military spending on Viagra is about $41.6 million.
Some media reports Wednesday also indicated the president’s motivation is political. That likely wouldn’t help the government’s case, Woods said.
“A political reason doesn’t overcome somebody’s constitutional rights,” Woods said. “There has to be a basis for this ban on transgender people and the Pentagon’s own studies show that there wouldn’t be disruption. So I don’t know how the government can justify it.”
Regardless, South Texas College of Law Houston professor Josh Blackman said courts considering the issue should focus on studies conducted and policies formed under the Trump administration, not the Obama administration. He said the litigation may mirror the ongoing travel ban cases in that former Obama-era officials will be trotted out before judges to opine on the current administration’s reasoning. Blackman said the courts should give deference to those actually in control of the military now, not former officials.
“It’s what I call the ‘shadow cabinet,’” Blackman said. He added that the case will come down “to what extent the military gets to decide their own priorities.”