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Military Update: Court battle expected over transgender ban

By: tom philpott Military Update -by name the gazette
September 10, 2017 Updated: September 10, 2017 at 4:05 am
photo - Tom Philpott - Military Update (Sig 2008)
Tom Philpott - Military Update (Sig 2008) 

Both opponents and supporters of President Trump's ban on transgender personnel in the military might agree that his abrupt policy shift was handled clumsily, even cruelly, considering that it targets individuals serving the nation honorably and with a special kind of courage that minority status often demands.

But transgender personnel can expect a "fistfight" in federal court as they seek to reverse the ban, arguing it violates their constitutional rights to due process and equal justice, said attorney Eugene R. Fidell, who has decades of experience with military personnel legal issues and teaches military law at Yale Law School.

The Obama administration lifted the ban on transgender members serving openly in June 2016 after months of study by a work group of military leaders, interviews with currently serving transgender personnel, and findings from think tank RAND that their serving openly would not significantly impact force readiness, unit morale or military costs.

That background will complicate but won't necessarily defeat legal arguments from the Trump administration for reinstating the transgender ban, Fidell said.

"It's one thing if a court is looking at a personnel qualification issue on a clean slate, but it's not a clean slate. The last administration went to some length to develop and support the policy change they made," said Fidell.

That only ensures there's a "horse race" ahead in trying to persuade courts that transgender personnel pose a risk to readiness. Federal judges, after all, "tend to be deferential" toward the commander in chief and military leaders on what authorities they say they need to recruit, train and sustain effective fighting forces.

"Having litigated against various parts of the Pentagon for most of my adult life," Fidell said, "I've seen one judge after another, who are otherwise sound people, fade when the government comes in and says 'The moon is made of green cheese.' Many federal judges will say, 'If you think it's cheese, it's cheese!'"

Two lawsuits have been filed challenging the ban. The first complaint was brought to the U.S. District Court in Seattle by hte rights groups Lambda Legal and OutServe-SLDN on behalf of three transgender service members.

"Dripping with animus," it argues, "the ban and the current accessions bar violate the equal protection and due process guarantees of the Fifth Amendment and the free speech guarantee of the First Amendment. They are unsupported by any compelling, important or even rational justification."

The other lawsuit was filed in a U.S. district court in Maryland by the American Civil Liberties Union and six current transgender service members. David M. Zionts, a lead attorney on that case, said the issue is "equality before the law."

Trump ignored the Defense Department's own "very rigorous, systematic review of evidence" that transgender personnel can serve openly without negatively affecting readiness, unit cohesion or military costs, he said. Without any evidence, Trump claimed a poor effect on all those areas justifies reinstating the ban.

Fidell said he believes the military can "permit and facilitate service by transgender personnel" without impacting readiness or a worrisome spike in medical costs. RAND forecast added health costs of $4 million to $8 million a year.

The military "spends far more on Viagra," Fidell said. He guessed right.

In 2016 the Defense Department spent almost $102 million on erectile dysfunction medicines for Tricare beneficiaries, mostly retirees.


Send comments to Military Update, P.O. Box 231111, Centreville, VA, 20120, email or twitter: Tom Philpott @Military_Update

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