Transgender persons have a constitutional right to serve in the armed forces, liberal and gay-rights groups said in new lawsuits filed Monday to try to block President Trump’s new directive restricting military service.
The American Civil Liberties Union of Maryland filed one lawsuit there, while the Human Rights Campaign and other organizations filed a separate challenge in Washington state. The organizations say they’re representing transgender persons either looking to enlist or already serving in the military.
Mr. Trump on Friday told the Pentagon to reject trans applicants, stop paying for sex-change surgery and to figure a strategy for how to handle those troops already serving.
His directive overturns a 2016 Obama-era policy that opened the military up to openly serving transgender troops.
The groups suing said Mr. Trump’s reinstated ban is arbitrary, and isn’t backed up by Pentagon research, but rather motivated by “animus.”
“Allowing men and women who are transgender to serve openly and providing them with necessary health care does nothing to harm military readiness or unit cohesion,” said Josh Block, a senior staff attorney at the ACLU.
Nicole Oxman, a spokeswoman with the Justice Department, said they are examining the claims in each of the lawsuits and conferring within the government.
Both the ACLU of Maryland and the Human Rights Campaign argue the medical costs for trans troops is minimal compared to the expense of enacting the ban.
The Human Rights Campaign cites a 2016 study commissioned by the Department of Defense, which found transition related medical care would cost between $2.4 and $8.4 million each year, while recruiting and replacing trans troops already serving would cost roughly $960 million.
The Williams Institute at UCLA School of Law estimated in 2014 that 8,800 transgender individuals were serving in the military and roughly 134,300 transgender individuals were veterans or had retired from reserve and guard service.
The lawsuits argue the Trump administration is violating the Fifth Amendment right of due process and the First Amendment right of free speech by enacting the ban after the previous administration began recruiting transgender persons. The suits also note 18 other countries permit transgender individuals to serve in their ranks.
Josh Blackman, a law professor at South Texas College of Law, said the cases could become another flashpoint for an active judiciary to try to hinder Mr. Trump.
“Courts have traditionally been deferential to the executive branch when it comes to military affairs, but, as seen in the travel ban litigation, the courts have been all-too ready to dismiss the president’s defenses as pretextual,” said Mr. Blackman.
Jonathan Turley, a law professor at George Washington University, said transgender discrimination “represents a new frontier of constitutional law.”
Because courts have given deference to the military, Mr. Turley said the context of this litigation against the ban is not ideal for those challenging the ban because courts haven’t given sexual orientation the highest level of review as they have with regards to race and religion.
“This challenge selects the worst possible context to test transgender rights,” he said.
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