Constitutional Law

Two suits challenge Trump ban on transgender individuals joining the military

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President Donald Trump/

Updated: Two lawsuits filed on Monday challenge President Donald Trump’s ban on the acceptance of transgender individuals in the military.

The American Civil Liberties Union announced its suit on Twitter and in a press release. The suit was filed in Maryland federal court on behalf of six transgender service members and the ACLU of Maryland. Lawyers from Covington & Burling are representing the plaintiffs with ACLU lawyers.

Two groups filed a second suit in federal court in Seattle on behalf of a soldier, two transgender people who hope to enlist, the Human Rights Campaign and the Gender Justice League, report the Washington Post and NPR. Filing the suit on behalf of the plaintiffs are Lambda Legal and OutServe-SLDN, according to a Human Rights Campaign press release. Kirkland & Ellis is also working on the suit, the National Law Journal (sub. req.) reports.

Trump signed a directive to implement the ban late on Friday, the New York Times reports.

The ACLU complaint alleges the ban violates constitutional guarantees of equal protection and substantive due process by singling out transgender individuals for unequal and discriminatory treatment.

The complaint (PDF) by Lambda Legal and OutServe-SLDN claims the ban violates the First Amendment guarantee of free speech, as well as equal protection and due process guarantees.

The Times says Defense Secretary James Mattis has wide discretion to determine whether transgender individuals may continue to serve in the military, but the ACLU suit disagrees with that assessment. According to the suit, Trump’s new order gives Mattis wide discretion in determining how to implement the ban, but he does not have the discretion to allow transgender individuals already in the military to continue serving indefinitely.

After a review process, the Department of Defense concluded in 2016 that there is no basis to ban transgender men and women from openly serving in the military and the ban would be lifted last month. Mattis had already pushed back the implementation date by six months when President Donald Trump indicated in a series of July 26 tweets he was going to keep the ban.

In his order on Friday, Trump said that in his “judgment,” the Defense Department failed to show that lifting the ban “would not hinder military effectiveness and lethality, disrupt unit cohesion or tax military resources.” Trump’s directive halts funding for sex-reassignment surgery, except to protect the health of people who have begun the treatment.

Trump’s order says the ban on enlistment of transgender individuals should begin on Jan. 1, and the ban on continued service by existing transgender service members takes effect on March 23. Mattis has until Feb. 21 “to determine how to address” transgender individuals currently in the military.

Trump’s order says the ban on enlistment should continue until there is a recommendation to the contrary “that I find convincing.”

According to the ACLU suit, Trump’s judgment “appears to reflect nothing more than uninformed speculation, myths and stereotypes that have already been rebutted by an extensive and rigorous evidence-based process.”

The ACLU suit is Stone v. Trump. The Lambda Legal suit is Karnoski v. Trump.

Updated at 1 p.m. to report on the suit by Lambda Legal and OutServe-SLDN, and to state that the ACLU suit was filed on behalf of six service members. Updated on Aug. 19 to add information about Kirkland & Ellis.

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