A coalition of civil rights groups is preparing a legal assault on President Donald Trump’s order banning transpersons from service in the U.S. military.
Public interest law groups, including the ACLU, Lambda Legal and OutServe-SLDN, are organizing affected service members or preparing litigation, while progressive legal scholars have attacked the order in online academic spaces.
The ACLU has not yet formalized plans to bring a lawsuit, though organization officials say they are reviewing their options and encouraging trans soldiers to contact them.
“There is no basis for turning trans people away from our military and the ACLU is examining all of our options on how to fight this,” ACLU staff attorney Joshua Block said. “For any trans service member affected by today’s announcement: Please get in touch with us, because we want to hear from you.”
Lambda Legal, a New York-based public interest firm which represents LGBT plaintiffs, also solicited affected trans service members to contact their regional offices for legal advice on the homepage of their website.
Though formal litigation has not yet been announced, the group’s director promised an immediate lawsuit when the president’s order is communicated through official channels.
“I’m hoping that this is nothing more than one more attempt at distraction,” Jon Davidson, legal director at Lambda Legal, told the National Law Journal. “If it actually were to become the policy, there will be whiplash at how fast we sue.”
Their action, if it comes, will be joined by OutServe-SLDN, a national legal network representing LGBT service members.
Other legal scholars, like Columbia Law School’s Jamal Greene, argue that the ban is facially unconstitutional, as it is motivated by animosity. Writing at the Take Care blog, Greene writes:
[S]uch a blanket prohibition, tweeted out in advance of the Pentagon completing a policy review, is so lacking in credibility that its only motivation seems to be animus towards transgender people. As the Supreme Court held more than two decades ago in Romer v. Evans, enacting government policy motivated by bare disgust towards a population of Americans is unconstitutional as a matter of first principles.
For the moment, the Joint Chiefs of Staff have not taken steps to implement the policy, as they have not yet received the directive through official channels. The president’s tweets announcing the shift are the only public communications from the administration regarding the issue, though White House Press Secretary Sarah Huckabee Sanders told reporters this week that National Security Council officials are working with military leaders on the text of the order, which will be officially promulgated in the near future.
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