ACLU's Trans Military Ban Lawsuit: What You Need to Know

"We want to show the president that we won't go down without a fight," says one attorney of Trump's recent decision to roll back transgender rights

President Trump is trying to roll back the rights of transgender service members across the American military. Credit: Michael Nigro/Pacific Press/Alamy

On Monday, the American Civil Liberties Union of Maryland filed a lawsuit, Stone v. Trump in a federal court in Baltimore, accusing the administration of violating the "constitutional guarantees of equal protection and substantive due process," ACLU staff attorney Chase Strangio tells Rolling Stone.

The lawsuit came three days after Donald Trump signed a memo directing the military to return to a policy, which the Obama administration had lifted last year, banning openly transgender individuals to join the armed forces. White House officials have said they do not comment on pending litigation.

Three weeks ago, Trump addressed his motivations behind the trans ban at his golf club in New Jersey by telling reporters that he has "great respect for the community," but "it's been a very difficult situation and I think I'm doing a lot of people a favor by coming out and just saying it," and preventing trans service members from getting the healthcare they need.

"As you know, it's been a very complicated issue for the military, it's been a very confusing issue for the military, and I think I'm doing the military a great favor," Trump continued.

It was on the morning of July 26th, the 69th anniversary of President Harry Truman signing an executive order to desegregate the American armed forces, when Trump thumbed a series of tweets, saying that the U.S. government "will not accept or allow transgender individuals to serve in any capacity in the U.S. military."

The six transgender service members involved in the lawsuit reached out to the ACLU after last month's tweets. "When the president declared this new policy, these individuals were terrified for their well-being and careers," Strangio says. "They feared the policy would cancel their health care procedures, their reenlistment contracts, and loss of other benefits."

As the debate over banning transgender individuals in the military continues, Rolling Stone has prepared a breakdown of the ACLU lawsuit and how it proposes to protect the rights of men and women who are transgender.

How did we get here?
Last year, former Defense Secretary Ashton B. Carter, under the Obama administration, lifted restrictions on transgender service members. The military was set to begin enlisting transgender people on July 1st, but current Defense Secretary Jim Mattis delayed the decision for six months to "evaluate more carefully the impact of such ascensions on readiness and lethality." Mattis noted the delay did not "presuppose the outcome of the review," which was scheduled for completion by December 1st.

Trump, who avoided the Vietnam draft with a diagnosis of bone spurs in his heels, leapfrogged the review when he tweeted that the military "cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail." His words contradicted his campaign promise to fight for LGBT Americans and blindsided a vacationing Mattis. The statement nearly killed a $790 billion defense spending bill that involved taxpayers funding hormone therapy and gender-reassignment surgery for transgender troops. (The House eventually approved the spending package that included $658 billion for the Pentagon and $1.57 billion to building the U.S.-Mexico border wall, but sidelined an amendment dealing with medical treatment related to gender transition.)

In response, several Republican senators – including former POW John McCain – joined Democrats to support transgender people in the military; a group of fifty-six retired generals and admirals said that banning would "degrade military readiness;" the first openly gay Army Secretary Eric Fanning told Rolling Stone the attempt at policy-by-tweet "was taking a class of people who are serving admirably in the military today and targeting them;" retired Staff Sergeant Shane Ortega, the first openly transgender Army soldier, said the president's "level of cognitive dissonance is so great, that we as the people have to take some sort of formidable action;" Samantha Bee, Seth Myers and James Corden ridiculed the ban on late night TV; and Arcade Fire told a Brooklyn crowd the ban was "a fucking wrong call." Even the daughter of Interior Secretary Ryan Zinke, Jennifer Detlefsen, who like her father is a Navy veteran, tweeted: "This veteran says sit down and shut the fuck up, you know-nothing, never-served piece of shit."

Trump's tweets also flustered Marine General Joseph Dunford, chairman of the Joint Chiefs of Staff, who wrote a note to senior military personnel, saying, "There will be no modifications to the current policy until the president's direction has been received by the Secretary of Defense and the Secretary has issued implementation guidance."

What is the trans ban?
In his Presidential Memorandum, Trump said that the Obama Administration "failed to identify a sufficient basis to conclude that terminating the Departments' longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources." He added that more study was needed to make sure last year's policy change "would not have those negative effects."

Trump also gave Mattis the authority to decide the fate of the thousands of openly transgender service members already serving. Mattis has six months to implement the directive. But the distribution of power is only half-served, since Trump directs transgender individuals banned from joining the military unless Mattis comes up with "a recommendation to the contrary that I find convincing."

Meanwhile, Trump is directing to "halt all use of DoD or DHS resources to fund sex reassignment surgical procedures for military personnel," unless someone has already started transitioning.

What is the ACLU lawsuit?

For the past month, since Trump's tweets, the ACLU has been working with Covington & Burling LLP, an international law firm headquartered in Washington D.C., to sue the president on the grounds of violating equal protection and due process. The 39-page lawsuit lists plaintiffs as President Donald J. Trump, Defense Secretary Jim Mattis, Army Secretary Ryan McCarthy, Navy Secretary Richard Spencer and Air Force Secretary Heather Wilson.

In the lawsuit, the ACLU says that the Pentagon concluded last year that "there was no basis for the military to exclude men and women who are transgender from openly serving their country," aside from standard fitness requirements. The ACLU cites a study by Pentagon-commissioned 2016 RAND Corporation, under Carter, which found that there would be "minimal" readiness impacts from allowing transgender individuals to serve openly in the military and that health care costs would represent "an exceedingly small proportion" of overall Department of Defense health care costs, between 0.04 to 0.13 percent, or $2.4 million and $8.4 million a year. For comparison, the ACLU says the military spends ten times as much on erectile dysfunction medicines, at $84 million.

The ACLU contends that Trump's "actual motivations were purely political, reflecting a desire to accommodate legislators and advisers who bear animus and moral disapproval toward men and women who are transgender, with a goal of gaining votes for a spending bill that included money to build a border wall with Mexico."

Strangio questions Trump's judgement, the same acumen to determine whether Mattis' recommendations get approved. The RAND study shows 2,000 to 11,000 active-duty transgender service members, while other groups like the Williams Institute at UCLA School of Law estimate that transgender people make up 8,800 active members of the military.

As Strangio tells it, Trump has "almost unilaterally, without consulting with military experts, acted cruelly and counter to everything we know about evidence-based military readiness, unit cohesion, and medical science."

Is anyone else taking legal action over this? 
Earlier this month, the National Center for Lesbian Rights and GLBTQ Legal Advocates & Defenders, on behalf of five transgender service members, filed lawsuits in federal court in the District of Columbia claiming that the ban is a violation of equal protection and due process.

On Monday, Lamdba Legal and OutServe-SLDN filed a lawsuit in federal court in Seattle, on behalf of two transgender people who want to join in the military, a transgender woman in the Army, the Human Rights Campaign, and the Gender Justice League. The lawsuit claims the violation of equal protection and due process, but also addresses violation of free speech protections.

The three lawsuits aim to convince federal courts to stop the trans ban from taking effect.

The same wish holds true for the ACLU, which represents plaintiffs Navy Petty Officer 1st Class Brock Stone, an anonymous Air Force senior airman, Airman 1st Class Seven Ero George, Navy Petty Officer 1st Class Teagan Gilbert, Army Staff Sgt. Kate Cole, and Marine Corps Technical Sgt. Tommie Parker.

Stone is a 34-year-old man, who served 11 years in the Navy and was deployed in Afghanistan for nine-months. Since July, Stone has been based in Fort Meade in Maryland, where he undergoes hormone therapy as part of his gender transition with hopes of completing surgery next year. Now, Stone faces the loss of his medical procedure, his career, and the chances at retirement benefits.

"The transgender ban is a slap in the face to individuals who have dedicated their lives to service," Strangio says. "Our hope is that transgender individuals can continue to serve in the armed forces. In the interim, we want to show the president that we won't go down without a fight and we want to show service members that we won't stop fighting for them."