NCLR, GLAD File New Motion for Urgent, Immediate Halt to President Trump’s Transgender Military Ban
Military leaders speak out in powerful new declarations against Trump’s ban, its disruption to armed forces and threat to national security
New plaintiff, Regan Kibby from U.S. Naval Academy, says preliminary injunction needed to stop ban before it ‘ruins transgender servicemembers’ lives’
(WASHINGTON, DC, August 31, 2017)—Today, the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates & Defenders (GLAD) filed the first motion for preliminary injunction to put an immediate halt to Trump’s transgender military ban. At the same time, NCLR and GLAD amended their initial complaint to include two new named plaintiffs: Regan Kibby and Dylan Kohere, respectively a midshipman from the U.S. Naval Academy and a student enrolled in the Reserve Officers’ Training Corps (ROTC). Powerful declarations in support of the motion for preliminary injunction from these new plaintiffs and from top military officials from the Army, Navy, and Air Force outline why leaving this ban in place would irreparably harm transgender servicemembers and their families and undermine national security.
“Our motion to halt Trump’s reckless transgender military ban is supported by top military experts, who know that ripping trained, experienced servicemembers out of our armed forces—for no reason other than who they are—will leave gaping holes in our defense, compromise national security, and inhibit recruitment during a critical time,” said NCLR Legal Director Shannon Minter. “These plaintiffs are dedicated professionals who simply wish to be treated the same as other servicemembers. They meet the same standards, do the same work, and want nothing more than the chance to continue serving our country.”
On Tuesday, Defense Secretary Jim Mattis announced the timeline for Trump’s transgender military personnel purge, as outlined in the White House memo provided to the Pentagon late Friday, August 25. This announcement confirmed that the military is developing plans for the rapid implementation of Trump’s ban in accordance with White House guidance. It also underscores the swiftness and urgency with which the court must act to prevent transgender servicemembers and their families from needlessly suffering further severe harms, including the inability to enlist, exclusion from military education and training, denial of access to medically necessary healthcare, destruction of the careers of talented and qualified servicemembers, and the creation of dangerous gaps within our armed forces.
“This case is about the safety of our nation and the strength of our Armed Forces,” said Jennifer Levi, GLAD Transgender Rights Project Director. “The military leaders who stand with these plaintiffs know firsthand the thorough process that went into the military policy the President is recklessly casting aside. They are speaking up for the courageous transgender servicemembers in this case because they know that our military, and our country, are weaker without them.”
A “preliminary injunction” is a measure the Court can take to prevent harm from compounding during the time it takes to hear and decide a case. When determining whether to issue a preliminary injunction, courts weigh both the severity of the harm and the likelihood that the side requesting the injunction will win their case based on merit.
The motion for preliminary injunction is supported by powerful declarations from all three former Service Secretaries (Army, Navy, and Air Force), the former Deputy Surgeon General for Mobilization, Readiness, and Army Reserve Affairs, and the former Acting Under Secretary for Personnel and Readiness who ran the process of studying the potential impacts of open transgender service on military readiness.
Former United States Secretary of the Army Eric Fanning
Former Secretary Fanning served as head of the Department of the Army, where he was charged with managing all matters relating to the United States Army, including manpower, personnel, reserve affairs, installations, environmental issues, weapons systems and equipment acquisition, communications, and financial management. The Army is the largest service branch of the United States Armed Forces and has an annual budget of more than $120 billion. The Army is one of the most formidable ground combat forces on earth and one of the largest employers in the United States. Many Army personnel are employed in highly technical roles that require lengthy and expensive specialized training.
In 2010, the repeal of Don’t Ask, Don’t Tell raised questions about the Armed Forces’ policy on service by transgender individuals. Particularly among commanders in the field, there was an increasing awareness that there were already capable, experienced transgender servicemembers in every branch, including on active deployment on missions around the world. Secretary of Defense Ashton Carter ordered Brad Carson, Acting Undersecretary of Defense for Personnel and Readiness, to convene a Working Group to identify practical issues related to transgender Americans serving openly in the Armed Forces and to develop an implementation plan that addressed those issues with the goal of maximizing military readiness. Former Secretary Fanning oversaw the Army’s participation in this Working Group, the results of which led to Secretary Carter’s 2016 announcement that transgender servicemembers could serve openly.
Former Secretary Eric Fanning said in his declaration that the Working Group concluded that a ban on transgender servicemembers from our armed forces would necessitate “the discharge of highly trained and experienced servicemembers, leaving unexpected vacancies in operational units and requiring the expensive and time-consuming recruitment and training of replacement personnel.”
Former United States Secretary of the Navy Raymond Edwin Mabus, Jr.
Former Secretary Mabus, who is also a former governor of the state of Mississippi, was charged with comprehensive oversight responsibility for the Department of the Navy’s annual budget, overseeing the recruitment, organization, training, supplying, equipping, mobilizing, and demobilizing of Navy personnel; and overseeing the construction, outfitting, and repair of naval equipment, ships and facilities. In this role former Secretary Mabus was also charged with formulating and implementing policies and programs consistent with national security objectives established by the President and Secretary of Defense. As Secretary of the Navy, Mabus was responsible for advising the Navy’s participation in the Working Group (outlined in Fanning’s description above).
Former Secretary Mabus said in his declaration “I oversaw the Navy and the Marine Corps through the end of the United States military operations in Iraq and the surge of tens of thousands of United States troops in Afghanistan. I am keenly aware that the recruitment and retention of capable and qualified servicemembers is of critical importance to the readiness of the Navy and the Marines…President Trump’s stated rationales for reversing the policy and banning military service by transgender people make no sense. They have no basis in fact and are refuted by the comprehensive analysis of relevant data and information that was carefully, thoroughly, and deliberately conducted by the Working Group…Banning transgender servicemembers will cause the loss of competent and experienced individuals who will be difficult to replace…Our ability to replace those individuals will also be hampered by the parallel reduction in the size of our potential recruiting pool.”
Former Secretary of the United States Air Force Deborah Lee James
Former Secretary James held responsibility for overseeing the Department of the Air Force’s annual budget, as well as the organization, training, supplying, equipping and mobilization of USAF personnel, including recruitment, retention, and medical policies for active duty and reserve personnel. Former Secretary James supervised the Department of the Air Force’s participation in the Working Group tasked with studying the policy and readiness implications of allowing transgender persons to serve openly in the Armed Forces.
The damaging repercussions of reinstating the ban on transgender service cited by Former Secretary James in her declaration include: 1) a loss of highly qualified and trained personnel, reducing military readiness and operational effectiveness. James notes this is a particularly acute concern for the USAF, which is currently experiencing a crisis-level shortage of pilots. 2) Erosion of servicemembers’ trust in their command structure and its professionalism. 3) Disruption and distraction not only for transgender servicemembers, but for their chain of command and their colleagues, who will lose people on whom they rely. 4) A negative impact on recruitment and retention, and an arbitrary elimination of otherwise highly qualified and valuable individuals who wish to serve, including those who are already enrolled in Reserve Officer Training Corp programs and military academies, based on a characteristic that has no bearing on fitness for military service.
Former Secretary James said in her declaration, “It is my assessment, based on my experience as Secretary of the Air Force and in other leadership positions within the Department of Defense and other defense-related institutions, that banning transgender people from enlisting or openly serving in the military would harm both the military and the broader public interest …the impact to morale engendered by the abrupt reversal of the policy permitting open service by transgender people will not only have an effect on the morale of our current servicemembers”…[it] will “also have a negative impact on the USAF’s ability to recruit highly qualified candidates who can perform at the highest levels necessary to complete the USAF’s core missions.”
Former Acting Under Secretary of Defense for Personnel and Readiness Brad Rogers Carson
Former Under Secretary Carson, a Rhodes Scholar and University of Oklahoma College of Law graduate, served in Congress as the Representative for the State of Oklahoma’s 2nd District. As Under Secretary of Defense for Personnel and Readiness, Former Under Secretary Carson functioned as the principal staff assistant and advisor to the Secretary and Deputy Secretary of Defense for Total Force Management with respect to readiness; National Guard and Reserve component affairs; health affairs; training; and personnel requirements and management, including equal opportunity, morale, welfare, recreation, and quality of life matters for more than 2.5 million military personnel. At the order of then Secretary Carter, Former Under Secretary Carson convened a Working Group to formulate policy options regarding transgender servicemembers.
Former Under Secretary Carson said in his declaration that the Rand Report produced for the Working Group, “found no evidence that allowing transgender people to serve openly would negatively impact unit cohesion, operational effectiveness, or readiness…banning service by openly transgender persons would require the discharge of highly trained and experienced servicemembers, leaving unexpected vacancies in operational units and requiring the expensive and time-consuming recruitment and training of replacement personnel.”
Former Deputy Surgeon General for Mobilization, Readiness, and Army Reserve Affairs Margaret Chamberlain Wilmoth
Former Deputy Surgeon General Wilmoth served as the representative of the Office of the Surgeon General of the United States Army to the Working Group tasked with studying the policy and readiness implications of allowing transgender persons to serve openly in the Armed Forces. The ultimate finding of the Working Group is that open service by transgender servicemembers does not impose any significant burdens on readiness, deployability, or unit cohesion, and there are no barriers that should prevent transgender servicemembers from serving openly in the military.
Former Deputy Surgeon General Wilmoth said in her declaration “The Working Group’s process for developing the protocol and recommendations was deliberative and thoughtful, involved significant amounts of research and education, and in the end resulted in a policy that all services supported. We were very proud to have developed a policy that treats transgender servicemembers as the equal of their fellow servicemembers, and as soldiers, sailors, marines, cuttermen, and airmen first.”
Midshipman Kibby has completed two years of education at the United States Naval Academy with a double major in English and history. He was inspired to serve both by his father, a Navy veteran, and his early childhood years in San Diego, a military town with a large Navy base, before moving to North Carolina with his family. He stated that he has always felt that he has a duty to serve. In high school, he enrolled in the Junior Reserve Officers’ Training Corps (JROTC) and by junior year dreamed of attending a military service academy. Military service academies are extremely competitive and accept fewer than 10 percent of applicants. The Naval Academy, as do many other service academies, requires a Congressional nomination. After a competitive application process, Midshipman Kibby was accepted to the U.S. Naval Academy.
During his first year at the U.S. Naval Academy, Midshipman Kibby came out as transgender, shortly after the time that then Secretary of Defense Ashton Carter issued an order announcing that transgender people could serve openly in the military. He followed protocol, informing his peers and his chain of command. If President Trump’s transgender military ban is implemented, Midshipman Kibby will not be permitted to complete the degree he has spent two years working toward or the career that he has spent a lifetime dreaming of and preparing for through years of JROTC.
Midshipman Kibby said that President Trump’s transgender military ban “ruins transgender servicemembers’ lives and ends the careers of trained, qualified members of our military for no reason other than who they are. After a lifetime of feeling a sense of duty and preparing to serve, reading Trump’s tweets was painful, and I saw my future crumbling.”
Dylan Kohere is an eighteen-year-old first-year student at the University of New Haven in West Haven, Connecticut and is a member of the Army reserve Officers’ Training Corps (ROTC) program. Kohere grew up in New Jersey, and was inspired to serve by his grandfathers’ military service. His goal is to spend his entire career in the military. Kohere came out as transgender during his freshman year of high school, where he was supported by friends and family members and served as president of his school’s Gay-Straight Alliance. Kohere’s ROTC program had been similarly supportive thus far, including his Sergeant. If President Trump’s transgender military ban is permitted to stand, Kohere will lose his ROTC scholarship, including tens of thousands of dollars toward tuition and living expenses, and will no longer be able to pursue his dream of a lifelong military career—based on something that has nothing to do with his ability or performance.
Dylan Kohere said, “A big part of the reason I was comfortable coming out as transgender in the ROTC was the announcement in the summer of 2016 that transgender people would be able to serve openly in the military. I was so excited that I would be able to achieve my goal of serving while remaining true to who I am.”
NCLR and GLAD filed the federal lawsuit Doe v. Trump on August 9, on behalf of transgender servicemembers with nearly 60 years of combined military service across a range of military branches. Plaintiffs anticipate a hearing on their motion to halt the ban to be held within weeks.
NCLR and GLAD’s lawsuit, Doe v. Trump, rests on claims of equal protection, due process and estoppel, based on the harm caused by the reversal of military policy after many servicemembers followed protocol and informed their chain of command that they are transgender. In addition to NCLR and GLAD, the plaintiffs in Doe v. Trump are represented by lawyers from Foley, Hoag LLP and WilmerHale.
The National Center for Lesbian Rights is a national legal organization committed to advancing the human and civil rights of the lesbian, gay, bisexual, and transgender community through litigation, public policy advocacy, and public education. www.NCLRights.org
Through strategic litigation, public policy advocacy, and education, GLBTQ Legal Advocates & Defenders works in New England and nationally to create a just society free of discrimination based on gender identity and expression, HIV status, and sexual orientation. www.glad.org