On Wednesday, two LGBTQ rights groups filed the first lawsuit against President Donald Trump’s proposed ban on transgender service members. An estimated 15,000 trans individuals are already in the U.S. military, and Trump’s ban, announced via Twitter, would seem to require their immediate discharge. The complaint, filed on behalf of five trans women now serving openly, claims such a purge would violate their constitutional rights. The suit makes a very sound legal argument. It’s also a clever mechanism to force the government to reveal how serious it is about enforcing Trump’s tweeted diktat.
Trump announced his ban without consultation with the Pentagon, which has declined to implement any new policy absent further guidance from the White House. On Friday, the Los Angeles Blade reportedon a draft of such guidance that has apparently received the approval of the White House Counsel’s office. The draft guidance would maintain the current bar on enrollment for trans people, which had been set to be lifted this July. It would also encourage trans troops who are already serving to retire as soon as possible, push out enlisted personnel once their contracts end, and terminate officers up for promotion.
The suit’s constitutional theories are especially compelling in light of the unprecedented nature of Trump’s policy: Never before has the Pentagon invited a new group of individuals to serve, then broken its promise and purged them from the ranks based solely on political judgment. The due process concerns raised by such a move are heightened by troops’ reliance interest. It is one thing to prohibit transgender people from enrolling in the military in the first place. To invite enrolled trans troops to come out, then expel them for making that decision on the basis of mere animus would seem to push the limits of due process. As a general rule, the government may not extend a guarantee of liberty to individuals and then punish them for relying upon that guarantee. On the merits, the plaintiffs have a strong case.
Will the courts reach the merits of this case? Read more via Slate