//  11/6/17  //  Commentary

By Scott Skinner-Thompson, Associate Professor of Law, Colorado Law

After careful review of the law and the evidence, a federal district court has concluded that President Trump’s ban on transgender people in the military was likely motivated by animus, not readiness, and therefore has enjoined the ban.  The ruling in Doe v. Trump has important short-term implications for transgender service members, potential enlistees, and their loved ones, but is also another important milestone for transgender rights writ large.  And, of course, the ruling represents another setback for the Trump Administration’s slapdash and callous mode of governance. 

Most significantly, Judge Colleen Kollar-Kotelley of the U.S. District Court for the District of Columbia concluded that laws which single out transgender people—as the military ban obviously does—are subject to heightened judicial scrutiny under the Equal Protection Clause.  According to the Court, there were two separate and reinforcing reasons for subjecting such laws to heightened scrutiny: transgender status is itself a protected, suspect classification and singling out transgender people is a form of sex or gender discrimination.  Accordingly, the ban can only survive constitutional examination if it serves an important government objective and if the discriminatory means are substantially related to achieving that objective. 

Applying this level of scrutiny, the Court concluded that transgender servicemembers and aspiring enlistees were likely to succeed in demonstrating that while military readiness is an uncontested important government objective, discrimination against transgender people is in no way substantially related to improving military readiness.  Instead, the ban denies all transgender people the ability to serve in spite of their fitness to serve.  As the Court emphasized, after careful study, the military previously concluded that transgender people’s inclusion in the military strengthened readiness by availing the military of all potential talent.  The Trump ban reversed course, without any such careful study and in a departure from typical procedure, further suggesting that the ban was motivated by improper discriminatory purposes rather than military readiness. 

The Court also noted that while deference is owed to the political branches when making decisions regarding the military, courts are still empowered—indeed, obligated—to ensure that military policy is consistent with constitutional rights.  Here, as discussed above, the trans military ban is likely not consistent with the Equal Protection Clause. 

In concluding that the plaintiffs were likely to succeed in their Equal Protection challenge, the Court also held that the plaintiffs had standing to challenge the ban now, both because they are suffering injuries today and would continue to suffer constitutional injury in the near future.  Trump’s August 2017 Presidential Memorandum detailing the ban provides that transgender service members must be removed from the military by March 2018 and that new enlistees are indefinitely prohibited now.  While Secretary of Defense Mattis is provided some discretion in how to implement the ban, he is not empowered to alter the fundamental directives: no new enlistees, and current servicemembers out by March 2018. 

As such, the Court readily concluded that the plaintiffs were suffering and would continue to suffer injuries sufficient not only to provide them standing, but also sufficient to justify an injunction.   First, the ban imposes an immediate competitive barrier to participating in the military, preventing transgender people from acceding now, and kicking any currently serving transgender people out in March 2018.  Second, the ban imposes a substantial risk the transgender plaintiffs will be denied accession or discharged from the military in the near future.  More broadly, the Court also observed that the ban stigmatizes transgender servicemembers, places a cloud over their service, reduces their stature among colleagues, and paralyzes their careers.  Therefore, according to the Court, the plaintiffs alleged injury sufficient to satisfy standing requirements and the requirements for receiving an injunction.  If left in place, the Court’s order means that transgender people will be able to begin enlisting on January 1, 2018, and currently serving members cannot be discharged because they are transgender. 

All told, while the Court determined that these particular plaintiffs lacked standing to challenge the portion of Trump’s Memorandum forbidding the use of military funds for gender confirmation surgery, the Court’s decision to enjoin the ban on both retention and accession of transgender people represents a careful unmasking of what President Trump’s initial, impulsive tweets introducing the transgender military ban made plain—the ban is about hate and fearmongering, not the best interests of our country. 



Versus Trump: 2017 Scorecard

1/4/18  //  Uncategorized

On the first episode of Versus Trump of 2018, Jason and Charlie look back at Versus Trump cases in 2017 and score them as Administration wins, losses, or not-yet-decided. They also look ahead at big issues to come in 2018. Listen now!

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Versus Trump: Judges of Christmas Future

12/21/17  //  Commentary

On this week’s Versus Trump holiday spectacular, it's all judges, all the time. Charlie, Jason, and Easha take a closer look at a number of the President's judicial nominees—confirmed, pending, and withdrawn—to examine what might happen to Versus Trump cases in years to come. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Enjoining the Contraception Rules

12/18/17  //  Commentary

A district court has stopped the Trump administration's hasty and poorly justified effort to relieve employers of their legal obligation to cover contraception.

Nick Bagley

University of Michigan Law School