//  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: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Trump Judges Strike Down Bans on Conversion Therapy

11/25/20  //  In-Depth Analysis

The 11th Circuit held that laws banning conversion therapy — a brutal practice that significantly increases depression and suicide among LGBTQ youth — violate speech rights. The decision signals how Trump-appointed judges could weaponize the First Amendment to roll back civil rights.

Take Care

Versus Trump: Blurring Public and Private Conduct

9/17/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie discuss two new legal filings by the Trump DOJ that blur the line between the President as government official and the President as private citizen. In the first case, the government argues that the President's twitter feed is not an official public forum, so he can block people with whom he disagrees. In the second, the government argues that the President's denials that he sexually assaulted E. Jean Carroll were made in his official capacity as President. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP