News Law and Policy

Trump’s Trans Military Ban Faces Yet Another Legal Challenge (Updated)

Lisa Needham

The lawsuit contends that banning military service for transgender people violates their right to due process and their free speech rights.

UPDATE, October 30, 3:38 p.m.: U.S. District Court Judge Colleen Kollar-Kotelly on Monday issued a preliminary injunction against President Trump’s ban on transgender people in the U.S. military. The injunction will remain until legal cases against the transgender ban are resolved. 

President Trump’s ban on transgender people serving in the military faces another lawsuit, this time from LGBTQ group Equality California.

This comes on the heels of two lawsuits filed August 28 and an earlier lawsuit filed after Trump tweeted about the ban.

The latest suit was filed on behalf of three openly transgender people who planned to enlist this year. The plaintiffs also include an openly transgender man who came out to his chain of command in reliance upon the Obama-era rule and three unnamed service members who are openly transgender but remain anonymous for fear of retribution.

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The Obama administration spent more than a year studying the service member ban, creating cross-service working groups, consulting with medical specialists, and commissioning a study from the RAND Corporation to determine whether removing the military ban would have any effect on military readiness and whether the health costs would be prohibitive. Trump, meanwhile, announced via a series of tweets a return to a complete ban on military service by transgender people.

Equality California’s lawsuit makes four claims. The lawsuit argues that the ban violates the due process clause of the Fifth Amendment by denying transgender people equal protection under the law. As noted in the complaint, transgender people have historically suffered discrimination and are unable to use the legislative process to protect their rights. The ban, without any rational reason, deprives them of their ability to serve.

The complaint states the due process clause also prevents the government from depriving people of their property or other interests: The government can’t take away something to which you are entitled without some basis for doing so. Here, the plaintiffs argue they have the right to hope to serve or to continue to serve in the military. The Trump administration’s ban deprives them of that right in an arbitrary fashion, according to the complaint. 

In other words, the attorneys argue, the minimal guidance Trump has issued about the ban fails to provide a reason for why banning transgender people from serving in the military is necessary.

The lawsuit alleges that the ban violates the plaintiffs’ right to privacy, which the U.S. Supreme Court has said includes the right to form intimate relationships. The lawsuit also contends that banning military service for transgender people violates their free speech rights; were the plaintiffs to speak openly about their transgender identity, they would not be allowed to serve.

The Trump administration has not yet responded to this latest lawsuit.

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