January 26, 2018
Transgender Americans are eligible to enlist, but the fight to end Trump’s discriminatory ban for good goes onIn the midst of challenging times for many in our nation, this new year began with one truly historic and promising moment. As of January 1, for the first time, transgender Americans became eligible to enlist in our nation’s military. This should be an incredibly proud step for our country. It follows a series of profound and positive changes in the history of our military – from racial desegregation, to welcoming service members from a multitude of faiths, from expanding roles for women, to ending the ban on service by lesbian, gay and bisexual people – all stemming from an understanding that our military is made stronger when it is reflective of the diverse American population it protects, and when all those who are both qualified and willing have an opportunity to serve. On January 2, our plaintiff Nicolas Talbott contacted the Air Force recruiter he has been working with for more than a year, thrilled to finally take the next step toward his dream.
“Service to me means coming together to take care of one another,” says Nicolas, who studied national security issues in college, about what motivates his long-standing desire to join the military. I just want to offer the skills and talents I have, to do what I can to make our country and our world a safer, better place. I’m excited and hopeful to finally move closer to that possibility.”But whether we would get to this moment – whether patriotic and talented transgender Americans like Nicolas would be able to pursue their dreams of service – was in question up until the very end of December. And the fight to ensure that capable, courageous transgender Americans are able to serve, and that our military is able to benefit from that service, still goes on, as we continuing battling Trump’s transgender military ban in court. The June 2016 announcement that transgender people would be able to serve openly in the military followed over a year and a half of rigorous study by military experts, which concluded that open service would have no adverse impact and in fact would strengthen military readiness and national security. Transgender Americans who were already serving – some for decades, all with dignity and courage – began to come out to their commanding officers. At the same time, it was announced that openly transgender Americans would be able to enlist beginning the following year. But that thoroughly vetted and thoughtful policy was suddenly threatened when, last July, President Trump tweeted an announcement that transgender people would be prohibited from serving in any capacity in the U.S. military. GLAD and our partners at the National Center for Lesbian Rights (NCLR) immediately saw this announcement for what it was – a serious attack on our community. We knew we needed to act quickly to ensure the rights and dignity of transgender Americans, preserve the stability of our military, and protect our nation’s core values of equality and fairness. We filed the first challenge to Trump’s discriminatory and harmful transgender military ban, Doe v. Trump, on August 9, on behalf of five (since joined by a sixth) service members and two individuals seeking to serve. A few weeks later, we joined a second case, Stockman v. Trump, representing additional current and aspiring service members. On October 30, D.C. District Court Judge Colleen Kollar-Kotelly issued a nationwide preliminary injunction halting the ban, in Doe v. Trump. Judge Kollar-Kotelly agreed our plaintiffs were likely to prevail on their claim that Trump’s ban violates their constitutional right to equal protection, and recognized the serious harm the ban was already causing to transgender service members –who under it face discharge and the loss of their livelihoods, health care, and post-military retirement they have worked hard to earn – as well as to transgender Americans who the ban blocked from ever being able to serve, regardless of their individual qualifications. Since then, each of the other three federal district courts to consider Trump’s transgender military ban, including in GLAD’s second case Stockman v. Trump, has issued a similar injunction halting its enforcement while the cases proceed. The Trump administration challenged those rulings on appeal – and, as we got closer to the January 1, 2018 start date for open enlistment, began to ask for “emergency stays” of those rulings, seeking to delay that date. But neither the district courts nor the courts of appeal were persuaded by the administration’s argument that the military was not prepared for open enlistment to begin. The district courts denied the government’s request for an emergency stay, and the courts of appeal followed suit. In ruling against a stay, the D.C. Court of Appeals described the central question with these profound words:
“[I]t must be remembered that all Plaintiffs seek during this litigation is to serve their Nation with honor and dignity, volunteering to face extreme hardships, to endure lengthy deployments and separation from family and friends, and to willingly make the ultimate sacrifice of their lives if necessary to protect the Nation, the people of the United States, and the Constitution against all who would attack them.”Late in the evening on December 29, we got incredible and welcome news: the Pentagon confirmed that the government was withdrawing its appeals of the temporary orders prohibiting enforcement of the ban, and would not seek a last minute “emergency” stay from the United States Supreme Court to delay the January 1 enlistment date. Transgender people throughout the country, whose future educational and career dreams rest on their being able to enlist, would finally be able to move forward. But this fight is far from over. While enforcement of the ban is currently blocked by court order, it remains official policy to deny continued service and enlistment by transgender people. The government is continuing to defend Trump’s ban in federal district court, where we are currently engaged in the discovery process. The government has also said that it will soon conclude a study of transgender people serving in the military, and we expect that it may use the outcome of that study as a further attempt to defend Trump’s discriminatory policies. “The beginning of open transgender enlistment is truly historic and something to celebrate,” says GLAD Transgender Rights Project Director Jennifer Levi, who with NCLR’s Shannon Minter is one of two transgender attorneys leading the fight against the ban. “But we can’t let down our guard. Beyond its devastating discriminatory impact on individual service members and on our military itself, allowing a ban on transgender service members to stand would have wide ranging implications. 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. This is a critical fight, for our community and for nation’s values.” GLAD, with our partners at NCLR and the other organizations who are challenging Trump’s ban in court will not stop fighting until it is gone for good. To follow case developments, visit our Doe v. Trump and Stockman v. Trump case pages.