In July 2017, President Trump announced on Twitter that the U.S. military would no longer allow transgender individuals to openly serve in the armed forces.  The next month, President Trump formalized the ban by directing the Secretary of Defense and the Secretary of Homeland Security to return to a policy of prohibiting open service by transgender individuals, and he also directed the Secretary of Defense to “submit . . . a plan for implementing” this policy, which the Secretary of Defense subsequently did.  Shortly after the President issued his formal directive, five anonymous transgender service members brought suit, claiming that the ban violates the equal protection and due process guarantees of the Fifth Amendment.  In October 2017, the district court issued a preliminary injunction preventing the military from implementing the ban.  The Trump administration filed a motion to dismiss the case, but the district court rejected that motion and then subsequently rejected a motion for summary judgment also filed by the government.  The government has appealed the decision denying its motion for summary judgment to the D.C. Circuit.

CAC filed a friend-of-the-court brief in the D.C. Circuit in support of the plaintiffs.  Our brief makes three principal points.  First, the Fifth Amendment guarantees equal protection for all and forbids the government from enacting policies that single out a class of individuals for disfavored legal status.  Second, the government’s justifications for the ban on transgender service members—that it is needed to maintain unit cohesion and military effectiveness—are similar to justifications that were offered in favor of past military policies that discriminated on the basis of race, sexual orientation, and gender.  Despite those fears, however, each of those policies was repealed without any negative effect on unit cohesion or military effectiveness, and in fact, military experts agree that a more inclusive service force actually strengthened the military’s effectiveness.  Third, much like these prior discriminatory military policies, the Trump administration’s ban on transgender service members has no rational connection to a legitimate government interest.  All of the evidence, including the military’s own data and research, confirms that open service by transgender people will not negatively affect unit cohesion or military effectiveness, and the ban therefore cannot withstand judicial review.

In January 2019, the D.C. Circuit lifted the District Court’s preliminary injunction that had blocked the ban from taking effect. The Court held that the District Court erred in finding that the policy recommended by then-Secretary of Defense James Mattis in February 2018 was an implementation of the 2017 directive, and in finding that Secretary Mattis’s plan was a blanket ban on service by transgender service members. Finally, the Court determined that the public interest weighs in favor of lifting the injunction in light of the deference afforded to the military’s judgments.