Maura Healey has led a friend-of-the-court brief against Trump’s transgender military ban. (Photo courtesy of Healey Campaign)
A group of 15 states and D.C. have intervened in litigation challenging President Trump’s transgender military ban, arguing the federal policy interferes with the National Guard.
The states made their argument Monday in a joint friend-of-the-court brief led by lesbian Massachusetts Attorney General Maura Healey and filed in the case challenging Trump’s policy in federal court in D.C.
“Our military should be open to every brave American who volunteers to serve,” Healey said in a statement. “Together with my colleagues, I am filing this brief today to ensure inclusion and opportunity for everyone who puts on a uniform.”
The 34-page brief argues the Trump’s order to ban transgender military service members adversely state policies and the rights of transgender people within state borders.
“The amici states share a strong interest in the readiness and effectiveness of our national defense, including an interest in ensuring that our armed forces and related institutions recruit, train, retain, and promote qualified service members,” the brief says. “The amici states also strongly support the rights of transgender people to live with dignity, to be free from discrimination, and to participate fully and equally in all aspects of civic life. These interests are all best served by allowing transgender people to serve openly in the military.”
After announcing on Twitter his intent to ban transgender people from the U.S. armed forces, Trump ordered the Pentagon to implement the policy — reversing a move in the Obama years allowing the estimated 15,500 transgender people in the armed forces to serve without fear of discharge over their gender identity.
Even before Trump issued his order to the Pentagon, the National Center for Lesbian Rights and GLBTQ Advocates & Defenders filed a lawsuit against the administration for plans to implement the policy, which they contend violates service members’ right to due process under the U.S. Constitution.
A major harm identified in the brief is the imposition the transgender military ban will have on state National Guards, which are operated by the states, but largely funded by the federal government.
“Because of the hybrid nature of the National Guard, however, the Amici States are required to comply with any directive the Trump Administration issues with respect to transgender service members, or risk losing much-needed funding for our National Guard units,” the brief says. “Most immediately, that means enforcing the prohibition on accepting openly transgender recruits. If fully implemented, the ban also may require National Guard leadership in the Amici States to renege on assurances made to existing transgender service members who came out in reliance on the 2016 open service policy; to pass over qualified transgender individuals for promotion; or to discharge them from service altogether.”
Other harms cited in the brief are anti-trans discrimination at public institutions of higher education, problems for veterans and general harms to the transgender people within the states.
“Now, worse than never having permitted them to serve openly in the first place, the Trump administration has singled out transgender individuals for renewed exclusion, sending a message that threatens to slow recent progress and that will be heard and felt throughout our communities,” the brief says. “Indeed, it seems that may be the point.”
The attorneys general who signed represent Massachusetts, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont and D.C.
The Trump administration has sought to throw out lawsuits challenging the transgender ban, calling them “premature” on the basis no policy change has yet been implemented. The advocacy groups have responded by saying the administration’s intent is clear to prohibit transgender people from serving in the armed forces.
Shannon Minter, legal director for the National Center for Lesbian Rights and a lead attorney in the case, said in a statement the courts must grant relief to transgender service members fearing discharge.
“Thousands of transgender service members and their families cannot afford to wait,” Minter said. “This administration demeans and degrades those who have given decades of exemplary service to our country or who have dreamed for years of enlisting but are banned from doing so for reasons that have nothing to do with ability or qualifications. We need our courts to provide these Americans and their families with swift justice.”
Also submitting friend-of-the-court briefs was a coalition of transgender groups — the National Center for Transgender Equality and the Transgender Legal Defense Network — and leading medical and psychological organizations.
