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Trump's Trans Ban Will Not Stand

Regan Kibby
Regan Kibby and his family.

Attorney Jennifer Levi, who's suing the president on behalf of GLBTQ Legal Advocates & Defenders, on why she's confident Trump will lose.

The past few weeks have been among the most intense I have experienced since I began advocating for transgender people in the late 1990s. On August 9, GLBTQ Legal Advocates & Defenders and the National Center for Lesbian Rights filed a lawsuit challenging President Trump's ban on transgender people serving openly in the military.

We jumped quickly to defend service members at the first sign of the seriousness of this attack. We were ready and moving forward even though some said not to worry, that a tweet is not a policy. But when you are the commander in chief of the military, as part of your role as president, words -- even words on Twitter -- matter.

We were worried. We all know by now that this is not a president who backs down once he starts making threats. He's the "double down" president who has not retreated from his most hostile attacks on marginalized people.

At the end of the day on August 25, Trump made his intentions obvious. He issued a White House memorandum making at least two things clear. First, he reversed current military policy allowing open service by transgender people, selecting March 23, 2018 as the date for when people will begin facing discharges. Second, he affirmed that no transgender person is allowed to enlist, now or ever. We knew we had to move even faster. Within a week, we filed our petition to stop the ban in its tracks while our case against the government proceeds. It is a legal filing well worth reading.

This case is about courageous transgender service members who put their lives on the line every day for our country. It is about our plaintiffs, who include six transgender active service members with decades of combined service in the Air Force, Army, Navy, and Coast Guard who face losing health care, housing, careers, retirement savings, and even day care for their children. It is about Regan Kibby, a midshipman at the U.S. Naval Academy, and Dylan Kohere, a member of the Army Reserve Officers' Training Corps who are facing the loss of anticipated military careers about which they have dreamed and for which they have planned much of their young lives.

As importantly, this case is about who counts as a citizen and who can share in deeply held American values, like respect, service, and basic human dignity.

To be clear, the policy at the center of this case sets its immediate sights on the exclusion of transgender people from the military, which is reason enough to wage this legal battle.

But the ban has a far broader reach as well. It is a statement by our government that transgender people are not fit to serve and defend our country -- whether or not we step up to do so. The impact of that statement runs deeper because those who are not fit to serve and defend may also not be perceived as being equally worthy of our country's protection. Service marks who counts among us as being worthy of leadership but also who counts among us for inclusion. History teaches that casting people out from bedrock institutions like the military erodes claims to citizenship and civic participation.

We have no choice but to fight this case with everything we've got. Luckily, we have some formidable voices of support on our side. Five top military officials provided declarations. They include former Secretary of the Army Eric Fanning, former Secretary of the Navy Raymond Edwin Mabus Jr., former Secretary of the Air Force Deborah Lee James, former Acting Under Secretary of Defense for Personnel and Readiness Brad Rogers Carson, and former Deputy Surgeon General for Mobilization, Readiness, and Army Reserve Affairs Margaret Chamberlain Wilmoth. Each, based on their own experiences and in their own way, confirmed the urgency of putting an immediate halt to a ban on transgender service members which they described as senseless and harmful.

Each explained the particular harm done to the stability and strength of the military where leaders have already determined that transgender people can openly serve and where the institution already went through extensive policy revisions to ensure that transgender people could do so proudly and openly.

In his declaration, former Secretary Fanning called this unprincipled and baseless reversal of policy an "unprecedented betrayal:"

"The Armed Forces have told transgender service members that they may disclose their transgender status and serve openly, without fear of discharge based on their transgender status," Fanning said. "Dramatically reversing course and now using that information as a basis for separating these soldiers from their service is an unprecedented betrayal of the trust that is so essential to achieving the mission of all of the armed forces."

In speaking to these military leaders as we prepared our case, I was deeply moved by their words conveying the weight of responsibility they feel for protecting the troops who put their lives on the line every day for our country. I also understood in a new and fuller way how the military has been strengthened each time it has taken steps to more fully reflect the diversity of our American society and how we are all demeaned when it excludes any individual who is fit to serve.

They put this ban in the context of military history and, to a one, affirmed that not just our armed forces but the social fabric of our country has been strengthened every time it has taken steps to remove barriers to service -- whether ending segregation in the ranks on the basis of race, removing barriers for women in combat, or finally ending the insidious "don't ask, don't tell" policy that forced brave gay soldiers to hide who they are.

This is one of the most important fights of my professional life. One about which I feel a particular urgency to engage and win because it comes at a time when the question is being called on whether America will remain a nation dedicated to its founding principles of liberty, justice, and equality. It should surprise no one that the same week we filed our first responsive document to the court's request in our case, President Trump announced an end to the Deferred Action for Childhood Arrivals program and then tried to obscure his role in it. Both the reversal of military policy on open service by transgender people and the rescinding of DACA are shocking examples of our federal government punishing a community for responding to a promise made.

As a transgender lawyer who has been working with and on behalf of the community for nearly 20 years, and as the founding director of GLAD's Transgender Rights Project, I am deeply gratified to be litigating this case alongside another longtime advocate and hero to the transgender community, NCLR legal director Shannon Minter. This is a case about rights of citizenship and who counts. As lawyers who have spent our careers establishing and then protecting core protections for the community, we know we are in the legal fight of our lives.

It won't be easy, but we can't and we won't back down.

JENNIFER L. LEVI is transgender rights project director for GLBTQ Legal Advocates & Defenders.

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