NCTE Leads “Friend of the Court” Brief Supporting Trans Service Members
by Ray Duval
Yesterday, the National Center for Transgender Equality and seven other transgender advocacy groups filed a “friend of the court” brief in support of the plaintiffs in Doe v. Trump, the case against President Donald Trump’s military ban, in the U.S. District Court for the District of Columbia.
The plaintiffs, represented by GLBTQ Legal Advocates & Defenders and the National Center for Lesbian Rights, have filed suit against the Trump administration, alleging that the ban against transgender military service violates their constitutional guarantees of equal protection and due process.
The arguments
The brief argues that the military ban violates two parts of the Constitution — the equal protection clause and the due process clause.
The first argument is that the ban violates the equal protection clause because it is motivated by prejudice and malice against transgender people, a historically marginalized group.
Citing the Trump administration’s clear pattern of anti-transgender bias and repeated attempts to promote discrimination against transgender people, along with behind-the-scenes lobbying of anti-LGBTQ groups, the irregularity of announcing military personnel policy via Twitter, and the complete lack of consultation with military and Department of Defense leaders, the brief demonstrates the overwhelming evidence that this decision was made only to harm and disparage transgender people.
“Whether motivated by pure enmity, a desire for political gain at the expense of a disfavored minority, or some combination, the ban is the result of animus. And tellingly, it is part of an ongoing pattern of hostility toward transgender Americans by the Trump Administration.”
The brief also argues that this ban violates transgender individuals’ constitutionally protected right to due process. As the authors write, “it has long been
recognized that the Due Process Clause protects a fundamental right to personal liberty — freedom that extends to a variety of ‘personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.’”
Courts have affirmed that this fundamental right includes the right to live in accordance with one’s gender identity and therefore prevents the government from punishing transgender people just for being transgender. Barring transgender people from military service on the basis of their gender identity certainly falls into this category and is therefore unconstitutional.
How this fits into the bigger picture
This brief is the latest part of a broad effort by transgender, LGBTQ, and veterans’ groups to halt the military ban and to protect trans people currently serving in or aspiring to join the armed forces.
In addition to Doe v. Trump, several plaintiffs represented by Lambda Legal and OutServe-SLDN have filed a lawsuit in the U.S. District Court for the Western District of Washington, also challenging the constitutionality of the ban. Attorneys in both cases have filed for preliminary injunctions, which would put the ban on hold while the suits make their ways through the court system.
Meanwhile, Congress is also making an effort to protect trans troops and aspiring recruits. Sen. Kirsten Gillibrand, along with co-sponsors Sens. John McCain, Susan Collins, and Jack Reed, introduced a bipartisan bill in September that would provide for the retention and service of transgender members of the armed forces.
Last week, Reps. Jackie Speier, Charlie Dent, Susan Davis, Ileana Ros-Lehtinen, Adam Smith, and Kyrsten Sinema introduced a mirror to this bill in the House of Representatives.
Take action now
You can make an impact by calling your Senators and Representatives and urging them to support S.1820 and H.R. 4041.
Tell them you support trans troops and that they should too!
Sign up to receive NCTE’s emails, and follow NCTE on Twitter, Facebook, and Medium for the latest news on issues affecting the transgender community. Visit transequality.org for in-depth resources and information on what you can do to support the transgender people in your life.
