What’s Next in the Transgender Military Ban Cases

TRANSGENDER MILITARY BAN

Tuesday was a historic day for the transgender community. For the first time, transgender people could openly enlist in the military. And reports so far indicate things are going smoothly. 

This shift in military policy has been in the works for some time, but its implementation was not a foregone conclusion. In 2016, the military studied the issue exhaustively and determined that permitting transgender people to enlist and serve would only strengthen our nation’s Armed Forces. This past July, however, President Trump threw a wrench in the works by abruptly announcing that he would not permit transgender people to serve in the U.S. military “in any capacity.” 

In response, our legal organizations, GLBTQ Legal Advocates & Defenders (GLAD) and the National Center for Lesbian Rights (NCLR), along with the ACLU and Lambda Legal, brought lawsuits to stop President Trump’s transgender military ban. 

We knew we had to act quickly. As transgender attorneys, we particularly felt the sting of the president’s attack on our community. Immediate action was critical for the thousands of transgender people currently serving and for the untold numbers who wanted to enlist or commission, and together, we filed the first lawsuits to challenge Trump’s ban.  

The stories of those impacted are powerful. Regan Kibby is a Naval Academy Midshipman who will not be able to complete his education and commission into the Navy unless the ban is withdrawn. Nicolas Talbott has been living on a farm in Ohio taking care of his grandmother and working part-time. He is counting on a military future to support himself and his family. Others have had to be anonymous. Jane Doe has given nearly 20 years of service to her country and is currently deployed in Iraq.

The lawsuits challenging President Trump’s ban have been successful so far. Four federal district courts have issued preliminarily rulings concluding that there is no military justification for excluding transgender people from service, and two courts of appeal have affirmed those rulings. These court victories have been hugely significant for those currently serving.  They have also ensured that people, like Nicolas and Regan, can continue to pursue their dreams — and be judged by their job performance rather than their gender identity. 

Despite these victories, the government is still defending the ban. We will not stop fighting in court until transgender people are allowed to serve and enlist openly. 

These cases are important because transgender service members urgently need and deserve our support. And they are important for other reasons as well.

Allowing a ban on transgender service members to stand would authorize discrimination in virtually every other area of policy and law. If transgender people are deemed categorically unfit to serve in the military, that exclusion will be used to justify discrimination in housing, employment, social services, family law, healthcare, public benefits, insurance, and beyond. 

The fact that this case is about military service also heightens the stakes. The military provides critical career and job options for many marginalized people. The military is our nation’s largest employer. It provides a source of income along with health and retirement benefits for thousands of transgender people, many with few or no alternatives.

In addition to providing a lifeline for many people, the military has contributed to positive social change. The essence of military service is commitment to a shared mission, regardless of personal identities or characteristics. Military service is often the first time people have a chance to work closely with individuals who come from a wide variety of backgrounds. It has been responsible for important shifts in how marginalized groups are seen by others and provided unprecedented opportunities for advancement for many groups, including people of color, women, religious minorities, and gay, lesbian, and bisexual people.  

The judges who have heard these cases have been visibly moved by the courage, contributions, and capabilities of the plaintiffs. As District Judge Colleen Kollar-Kotelly noted, “Transgender individuals have suffered, and continue to suffer, severe persecution and discrimination. Despite this discrimination, the Court is aware of no argument or evidence suggesting that being transgender in any way limits one’s ability to contribute to society. The exemplary military service of Plaintiffs in this case certainly suggests that it does not. … Many have years of experience in the military. Some have decades. They have been deployed on active duty in Iraq and Afghanistan. They have and continue to serve with distinction.”

As these cases proceed through the courts, and as President Trump and the Department of Defense weigh their options in the weeks and months ahead, transgender service members and enlistees urgently need continued support. The stakes could not be higher, and now more than ever is the time for allies and community members to stand up as loudly, proudly, and unrelentingly as possible to support transgender people’s continued ability to serve. 

JENNIFER LEVI is the GLAD Transgender Rights Project Director and SHANNON MINTER is the NCLR Legal Director.     

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