Justice Department lawyers shortly before midnight Wednesday asked a federal judge to dismiss a challenge to President Donald Trump’s proposed transgender military ban, calling the challenge “premature several times over” because the policy has yet to go into effect.
The is the first time the Trump administration has responded to legal challenges that were triggered this summer when the President tweeted that “the United States Government will not accept or allow transgender individuals to serve in any capacity in the US military.”
In August, the President followed up the tweet with a directive to the secretaries of Defense and Homeland Security directing a return to “longstanding policy” that was in place prior to June 2016 that prohibited openly transgender individuals from serving the military.
Under the directive, the Pentagon and DHS are expected to halt the use of government funds for sex reassignment surgical procedures by March 23, 2018. In addition, the directive extends indefinitely a ban on the enlistment of transgender people.
Although administration lawyers argued primarily that the challenge was premature because the Pentagon is currently studying how to implement the President’s directive, they also said that “federal courts owe the utmost deference to the political branches in the field of national defense and military affairs, both because the Constitution commits military decisions exclusively to those branches and because courts have less competence to second-guess military decision making.”
Wednesday’s filing saying that “no action” will be taken until “after a policy review is completed” suggests a scaling back in tone from the President’s July tweet that took much of his national security apparatus by surprise.
The legal filing is in response to a lawsuit filed by the National Center for Lesbian Rights and GLBTQ Legal advocates and Defenders in the US District Court for the District of Columbia asking for an injunction to block Trump’s ban.
Regan Kibby, a transgender midshipman at the US Naval Academy, is the named plaintiff in the case.
“If this ban on transgender enlistment is allowed to stand, then that means I’m no longer eligible to graduate and receive my commission,” Kibby said in an interview with CNN.
Former military officials under the Obama administration have filed declarations in support of the motion for preliminary injunction. They include Secretary of the Army Eric K. Fanning, Secretary of the Air Force Deborah Lee James and Secretary of the Navy Raymond Mabus Jr.
The plaintiffs are seeking to block Trump’s directive arguing that it has diminished the service of “capable, honorable service members based on a characteristic that has nothing to do with their ability to serve.” They argue it violates their right to equal protection and due process and stigmatizes them “in the eyes of their fellow service members,” they argued in court filings.
“Because of the President’s ban, smart, idealistic, and qualified young people are being denied an opportunity to serve, and transgender troops who are already serving are being denied medical care and told that their dedication, skills, and training are no longer valued,” said Shannon Minter a lawyer for the plaintiffs. “They are scrambling to plan for new futures and determine how they will be able to support themselves and their families when the ban takes effect in March,
Other similar lawsuits are percolating across the country, including one from the American Civil Liberties Union.
As things stand Defense Secretary James Mattis in August said the Pentagon and DHS will “develop a study and implementation plan which will contain the steps that will promote military readiness, lethality and unit cohesion.” He said that he would establish a panel of experts to provide “advice and recommendations” and for now, transgender members will continue to be allowed to serve.
“I want to emphasize,” he wrote that the current policy and procedures remain in place. “Current transgender service members will continue to serve throughout the military and continue to receive necessary medical treatment as prescribed by their medical provider.”