One has served in the U.S. Air Force for nearly 20 years, another in the U.S. Coast Guard for over a decade. Three others have served in the U.S. Army for about 30 combined years, with service in Iraq and Afghanistan. All are currently on active duty, all identify as transgender, and all of them are gearing up for a new battle — against their commander in chief.
The five women were among the thousands of U.S. military service members who came out as transgender in July 2016, when the Department of Defense made its historic decision to permit transgender soldiers to serve openly. Now, the five service members — who are staying anonymous for fear of retribution — are suing President Trump and other top officials in the first-ever lawsuit challenging Trump’s proposed transgender military ban.
“We can defend transgender people in the face of this administration,” Jennifer Levi, a lawyer on the case and the director of GLBTQ Legal Advocates & Defenders’ (GLAD) Transgender Rights Project, told VICE News. “This is absolutely the start of a really important fight.”
Trump declared the ban via a Twitter message July 26, surprising even the Pentagon with his call for the reversal of the military’s transgender policies.
The lawsuit — which was filed Wednesday by the National Center for Lesbian Rights and GLAD in the U.S. District Court for the District of Columbia — argues the ban “lacks a rational basis, is arbitrary, and cannot be justified by sufficient federal interests.”
The suit also argues that the ban on transgender military personnel violates equal protection and due process rights granted under the Fifth Amendment.
But before the case can go forward, they’ll have to clear an important legal bar. David B. Cruz, an expert in LGBT law and constitutional law at the USC Gould School of Law, says that the biggest challenge the lawsuit will face in court is passing the “ripeness doctrine,” a term used to describe how courts determine if an issue is “ripe” or ready for judicial review — in this case, by considering the potential harm to the women if they were to decline to decide on the claim. Cruz says this analysis could doom the suit because Trump’s tweets have yet to be formalized into official military doctrine.
“The Department of Defense has not converted Trump’s tweets into even a proposed regulation so far as I know, so courts might find it premature to opine on what the Department may legally do with respect to transgender service members,” Cruz told VICE News.
Levi told VICE News she has not heard a “peep of denial” from the White House since the announcement, and in the suit alleges that the White House has since turned the announcement “into official guidance, approved by the White House counsel’s office, to be communicated to the Department of Defense.”
Levi argues that the service members are, in fact, facing immediate harm, in the form of having to make decisions about their enlistment, their families, and their livelihoods, in light of Trump’s tweets. For the case to go forward, Cruz says, the court will have to agree that the uncertainty to which the announcement has subjected transgender service members constitutes a “sufficient injury” that the lawsuit would remedy.
Ultimately, Cruz says, though it is “less clear whether courts will agree that it is also sufficient to warrant judicial review at this stage of policy formulation,” it might be possible that the courts find “no factual justification for a ban, as the plaintiffs allege,” which could be enough to warrant legal action.
The Department of Defense said in a July statement that it would only implement Trump’s mandate if an official directive was given.
An estimated 15,500 transgender Americans currently serve in the military either on active duty or through the U.S. reserves. Though in his tweets Trump said the military incurs “tremendous medical costs and disruption,” a frequently cited study conducted by the nonprofit think tank RAND found the costs comprise a very small fraction of the overall budget. In fact, as the Washington Post points out, the U.S. military actually spends more on Viagra than on medical costs for transgender personnel.