President Donald Trump’s decision on Monday to reinstate a ban on transgender Americans serving in the military would revive a legal battle over the contentious move, which was greeted with opposition from federal courts but not finally addressed during his first term.
The executive order signed by Trump reinstates a similar restriction he imposed in 2017, which sparked at least four lawsuits alleging illegal sex discrimination.
LGBTQ campaigners have pledged to take Trump back to court over the new ban, which they anticipate would be met with skepticism from judges, particularly given how the legal landscape around transgender rights has altered in their favor since the first ban was evaluated by courts.
In a series of challenges filed during Trump’s first term, federal district courts around the country temporarily prevented the ban from taking effect. Judges from Washington, DC to Washington state said it infringed transgender people’s constitutional rights.
However, the Supreme Court allowed the ban to go into force in 2019, but did not decide on its constitutionality until President Joe Biden repealed it in 2021.
“In 2017, every single federal district court that heard a challenge agreed it was unconstitutional,” said Shannon Minter, legal director of the National Center for Lesbian Rights, which filed some of the challenges to Trump’s initial ban. “And since that time, the case law holding that discrimination against a person because of their transgender status is unlawful has only become stronger.”
Minter and other LGBTQ rights lawyers said their organizations have been in contact with transgender persons presently serving in the military and are prepared to file challenges against the new restriction soon.
“These are people who have dedicated their lives to serving our country.” They are very accomplished and trained. “They’ve been in the military for a long time,” Minter explained. “Just expelling people from the military simply because of who they are – completely unrelated to their performance – is a classic case of unconstitutional discrimination.”
‘Discriminatory effect’
Though the years-long struggle against Trump’s first ban resulted in court victory for the transgender military members and potential enlistees who challenged it, the legal process was far more convoluted.
The case never made it to the Supreme Court for a thorough review. However, in a 5-4 decision published in January 2019, the high court allowed the prohibition to go into force while lower court appeals were pending. The decision was essentially procedural: it stated what the administration could and could not do in defending the ban against the challenges, but it mentioned nothing about the underlying legal issues.
Appeals courts were debating those issues when Biden became office in 2021 and reversed Trump’s ban, making the cases moot.
However, the attorneys who worked on the challenges feel their arguments were mainly successful, despite lower-court judgments that blocked the ban from taking effect for a year and a half.
The judges who granted preliminary injunctions against the first ban concluded that it was likely unlawful since it discriminated against transgender people.
Among them was US District Judge Colleen Kollar-Kotelly of Washington, DC, who wrote in a harsh decision that the justifications cited for the prohibition “appear to be hypothetical and extremely overbroad.”
“A bare invocation of ‘national defense’ cannot defeat every motion for preliminary injunction involving the military.” On the evidence before the Court, there is just no foundation for the argument that transgender people’s continued service will have any detrimental impact on the military at all,” she concluded.
“In fact, there is considerable evidence that it is the discharge and banning of such individuals that would have such effects,” according to the judge.
Other federal courts have also rejected the Trump administration’s defenses for the ban, with a federal judge in Maryland saying in a case brought there by the American Civil Liberties Union that the government did not “identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest.”
“The lack of any justification for the abrupt policy change, combined with the discriminatory impact to a group of our military service members who have served our country capably and honorably, cannot possibly constitute a legitimate governmental interest,” Judge Marvin Garbis wrote in his ruling that blocked the objection.
Jennifer Levi, an attorney with GLAD Law who also worked on lawsuits against the first ban and plans to challenge the new one, stated that “what we know and understand from the first round of this is that an abrupt change in military policy that isn’t rooted in military interests undermines the safety and security of the country.”
“That is really the analysis from the courts from the first round, and it’s also, you know, a principle well established in the equality guarantees of the Constitution,” the attorney general said.
Every road leads to the Supreme Court.
Levi and Minter both told AWN that they expect the historic 2020 Supreme Court decision Bostock v. Clayton County will help with challenges against the new restriction. In that case, the majority, led by conservative Justice Neil Gorsuch, concluded that federal legislation against sex-based discrimination in the workplace extends to homosexual and transgender employees since such action “necessarily” occurs because of that person’s gender.
In the years since Bostock was decided, LGBTQ rights groups have attempted to persuade federal courts to extend the rationale in that decision to problems involving health care, education, housing, and other aspects of life.
“Bostock is important for a lot of reasons because it makes it clear that if you target transgender people, that is sex-based discrimination, and therefore heighted scrutiny applies,” Levi said, referring to a level of judicial review that requires government defendants to show that a specific action furthers an important government interest and that the action achieves that goal in a way that is “substantially related” to that interest.
One challenge the anti-ban litigants may confront this time is obtaining a countrywide injunction. In recent years, some courts have been leery of giving such relief in lawsuits challenging federal government policy, particularly if the jurist is politically associated with the party in power.
However, even if some of the challenges result in preliminary injunctions, the administration is likely to seek further intervention from the Supreme Court, according to Steve Vladeck, an AWN Supreme Court analyst and professor at Georgetown University Law Center.
“I don’t know that anything has happened since then that would make the Supreme Court less likely to do that again,” he told reporters.
When then-Solicitor General Noel Francisco asked the court to intervene in the case in late 2018 so that the administration could implement the ban, he drew on the argument that the military should be able to apply its preferred policy while it was being evaluated by courts.
Without a ruling from the president, Francisco argued, “the nationwide injunction would thus remain in place for at least another year and likely well into 2020 – a period too long for the military to be forced to maintain a policy that it has determined, in its professional judgment, to be contrary to the Nation’s interests.”
Weeks later, the Supreme Court accepted Francisco’s motion, allowing the military to enforce the ban until Trump leaves office two years later.
Vladeck believes the argument may be effective again because “courts have generally given the military more of a right to discriminate than other government actors.”
“It’s hard to predict how this ends, but it would be a real surprise to me if it ends with some kind of definitive Supreme Court ruling striking down the ban,” Vladeck said. “Short of that, there are lots of other possible permutations.”
