Trump sets in motion a ban on open transgender military service

LGBT

LAW NOTES September 2017

TRUMP SETS IN MOTION A BAN ON OPEN TRANSGENDER MILITARY SERVICE

Lawsuits Filed Around the Country to Stop Directive in its Tracks

? 2017 LGBT Law Notes & the LGBT Law Notes Podcast are Publications of the LeGaL Foundation.

EXECUTIVE SUMMARY

294 Trump Changes Policy on Military Service by Transgender Individuals; LGBT Rights Organizations Quickly Sue

298 U.S. Supreme Court's October 2017 Term May be an LGBTQ Blockbuster

300 New York Appellate Division Rules on Controversial Custody Dispute Between Hasidic Father and ExHasidic Lesbian Mother

304 Federal Court Refuses to Enjoin School District from Allowing Transgender Students to Use Facilities Consistent With Their Gender Identity

306 Supreme Court of India Finds a Constitutional Right to Privacy

307 6th Circuit Denies Asylum in Honduran HIV-Related Economic Persecution Case

308 6th Circuit Denies a Gay Somali Man's Petition to Review Adverse BIA Orders

309 4th Circuit Revives Gay Hate Crime Prosecution

311 New Jersey Appellate Division Finds Father's Beating of Son Due to Son's Sexuality to be Abuse and Neglect

312 Idaho Federal Court Preserves Foster Parent Status Quo Pending a Merits Ruling on Lesbian Co-Parent Birth Certificate Case

314 South Carolina Supreme Court Finds Some Gays Are Protected from Domestic Violence

316 Florida Appeals Court Holds Birth Mother's Constitutional Right Trumps Co-Parent's Parental Claims

318 Missouri Court of Appeals Holds the State's Human Rights Act Does Not Protect against Gender-Identity Discrimination

319 Indiana Appeals Court Allows Anonymous Document Changes for Transgender Men

321 Federal Court Revives Student's Harassment/ Bullying Case against Connecticut School District and Football Coach

323 New York Appellate Division Panel Affirms Stiff Sentence and Denial of Youthful Offender Status to Troubled Gay Teen

324 Federal Judge's Novel Decision to Monitor Transgender Inmate's Case, Claimed to be Moot, Results in Maryland's Liberalization of Transgender Treatment Standards

325 "Postal Plebiscite" on Same-Sex Marriage Roils the Waters in Australia

326 ACLU Reboots Gavin Grimm Challenge to Gloucester School Board Policy

329 At-Will Transgender Employee Can Assert Tort Claims Against Employer for Broken Promises

330 3rd Circuit Directs Board of Immigration Appeals to Reconsider Bisexual Guyanese Man's Motion to Reopen His Refugee Case

332 Notes 377 Citations

LGBT

LAW NOTES

Editor-In-Chief Arthur S. Leonard, Robert F. Wagner Professor of Labor and Employment Law New York Law School 185 West Broadway New York, NY 10013

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Trump Changes Policy on Military Service by Transgender Individuals; LGBT Rights Organizations Quickly Sue

On July 26, to the surprise of Defense Department officials and members of the White House staff, Donald Trump transmitted a series of three tweets beginning at 8:55 a.m. announcing a new policy concerning military service by transgender individuals. "After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow . . . . . . Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming . . . . . . victory and cannot be burdened with the tremendous medical costs

their gender identity for years began the process of transition with the assurance that the costs would be covered under military health policies. Estimates of the number of transgender service members ranged from a few thousand to as high as 15,000, most of whom have not yet made their presence known to their commanding officers. This unknown group likely includes many officers as well as enlisted personnel.

Attempts to discern details of the new policy were at first unsuccessful because neither the usual sources in the White House nor the Pentagon had received any advance notice or details. Admiral Paul F. Zukunft,

After a paragraph summarizing what had been done the previous summer and noting that the Secretaries of Defense and Homeland Security had extended a July 1, 2017 date for allowing transgender people to join the military to January 1, 2018, the President stated his reasoning: "In my judgment, the previous Administration failed to identify a sufficient basis to conclude that terminating the Departments' longstanding policy and practice would not hinder military effectiveness and lethality, disrupting unit cohesion, or tax military resources, and there remain meaningful concerns that further study is needed to ensure that

The White House finally issued a document titled "Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security" on August 25.

and disruption that transgender in the military would entail. Thank you." This appeared to be a complete reversal of a policy decision made a year earlier by the Defense Department. After a period of prolonged study that included a report commissioned from the RAND Corporation (a "think-tank" that specializes in producing studies on defense-related issues by contract with the DoD) and widespread consultations within the military and with military allies that allow transgender individuals to serve, DoD rescinded an existing regulation that established a ban on service by transgendered individuals on purported medical grounds. As a result of the policy newly announced during June 2016, hundreds of transgender service members "came out" to their superior officers, and some service members who had been concealing

Commandant of the Coast Guard, immediately announced that the Coast Guard would not "abandon" its several openly-transgender members, and that he and his staff had reached out to reassure them. The other military service heads and the Chairman of the Joint Chiefs of Staff quickly announced that there would be no change of policy until some formal directive came from the Office of the President. A spontaneous presidential tweet was not deemed by the Pentagon to be an order to abandon an existing published policy. The White House finally issued a document titled "Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security" on August 25, signed by President Trump, directing a series of steps that appeared to fall far short of the draconian July 26 tweets.

continued implementation of last year's policy change would not have those negative effects." This was stated in blithe disregard of the fact that over the past year, transgender military service members, in reliance on the announced policy change, had come out to their commanders by the hundreds and that there was no evidence during that time of any adverse effect on military operations or unit cohesion, or of significant strain on the military's budget attributable to this policy change. There has been no reporting that military commanders had asked to abandon the policy allowing transgender individuals to serve, and there has been no reporting that either Trump or members of his staff have actually reviewed the voluminous materials generated by the review process undertaken by the DoD prior to announcing its change of policy in June

September 2017 LGBT Law Notes 294

2016, or were reacting to actual evidence indicating problems over the past year (since there have not been reports of any such problems).

After invoking the president's powers as Commander in Chief, the Memorandum continues, "I am directing the Secretary of Defense, and the Secretary of Homeland Security with respect to the U.S. Coast Guard, to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016 until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not have the negative effects discussed above. The Secretary of Defense, after consulting with the Secretary of Homeland Security, may advise me at any time, in writing, that a change to this policy is warranted."

of an individual who has already begun a course of treatment to reassign his or her sex." Interestingly, this directive mentions only "sex reassignment surgical procedures" but not any of the other costs associated with gender transition, including hormone treatment, which may reflect either ignorance by the White House staffers who drafted the Memorandum or a deliberate intention to make the exclusion as narrow as possible, focusing only on the political "flashpoint" of surgery. The Memorandum states that this second directive about surgical expenses will take effect on March 23, 2018. In other words, transgender individuals currently serving will continue to be covered for sex reassignment surgical procedures at least until March 23, 2018, and continuing beyond then if cutting off coverage on that date interferes with

On a plain reading, the "effective dates and implementation" section appears to mark a substantial retreat from the absolutist tone of the July 26 tweets.

The Memorandum then sets out specific "directives," apparently intended to be the operative provisions of the Memorandum. The first directive is to "maintain the currently effective policy regarding accession of transgender individuals into military service beyond January 1, 2018, until such time as the Secretary of Defense, after consulting with the Secretary of Homeland Security, provides a recommendation to the contrary that I find convincing." In other words, the existing ban on enlisting transgender individuals will continue indefinitely, but can be ended when the Secretary of Defense convinces the president to end it. The second directive is to "halt all use of DoD or DHS resources to fund sex reassignment surgical procedures for military personnel, except to the extent necessary to protect the health

completing surgical procedures already under way. Or at least, that's what it appears to say.

Third, in the section titled "effective dates and implementation," the Memorandum gives the Secretary of Defense until February 21, 2018, to submit to the president a "plan for implementing both the general policy set forth in section 1(b) of this memorandum and the specific directives set forth in section 2 of this memorandum. The implementation plan shall adhere to the determinations of the Secretary of Defense, made in consultation with the Secretary of Homeland Security, as to what steps are appropriate and consistent with military effectiveness and lethality, budgetary constraints, and applicable law. As part of the implementation plan, the Secretary of Defense, in consultation with the Secretary of

Homeland Security, shall determine how to address transgender individuals currently serving in the United States military. Until the Secretary has made that determination, no action may be taken against such individuals under the policy set forth in section 1(b) of this memorandum." The Memorandum also has a severability provision, the usual disclaimers accompanying presidential directives about not creating new rights or changing the authority of any government departments or agencies, and permission to the Secretary to publish the Memorandum in the Federal Register. (It was made immediately available on the White House website.)

On a plain reading, the "effective dates and implementation" section appears to mark a substantial retreat from the absolutist tone of the July 26 tweets. In trying to construe the tweets, there had been speculation that transgender service members would be immediately discharged or pressured to resign in order to avoid discharge. Leaks from the White House, while staff members were working on a written guidance for the president to sign, led to reports that transgender enlisted personnel would be allowed to serve out their enlistments but then be denied reenlistment while being encouraged to resign earlier, and that transgender officers could continue to serve their commissions, but would be required to resign if being considered for promotions.

Based on the leaks, GLBTQ Legal Advocates and Defenders (GLAD), the Boston-based New England public interest law firm, and the National Center for Lesbian Rights (NCLR), based in San Francisco, with cooperating attorneys from Foley Hoag LLP and Wilmer Cutler Pickering Hale & Dorr LLP, filed a lawsuit on August 9 in the U.S. District Court for the District of Columbia, representing five "Jane Doe" plaintiffs, all presently serving transgender individuals, seeking declaratory and injunctive relief. Doe v. Trump, Case 1:17-cv-01597. The case was assigned to District Judge Colleen Kollar-Kotelly, who was nominated to the court in 1997 by President Bill Clinton. The plaintiffs, with varying lengths of service, present compelling stories about the harms the

295 LGBT Law Notes September 2017

proposed policy would have on them, based, of course, on what was known when the complaint was filed. Among them, of course, were interference with ongoing transitions, interference with attaining military pensions (which some were close to vesting), and loss of career and benefits, affecting not only the plaintiffs, but their family members as well. There was also the emotional stress generated by uncertainty about their future employment and welfare.

The three-count complaint asserts violations of equal protection and due process (Fifth Amendment) and invokes the doctrine of estoppel to prevent adverse moves against the plaintiffs and those similarly situated as presently serving transgender members of the military who had been encouraged to "come out" as transgender under the earlier policy. The named defendants, in addition to the president, are Secretary of Defense James Mattis, Chairman of the Joint Chiefs of Staff Joseph F. Dunford, Jr., the Departments of the Army, Air Force, and Coast Guard, Army Secretary Ryan D. McCarthy, Air Force Secretary Heather A. Wilson, Acting Homeland Security Secretary Elaine C. Duke, and, for good measure, THE UNITED STATES OF AMERICA. There was some speculation and criticism that filing the lawsuit before a formal policy was announced or implemented was premature and might result in a dismissal on grounds of standing or ripeness, but the release of the formal guidance just a few weeks after the suit was filed will undoubtedly lead to the filing of an amended complaint focusing more specifically at the changes announced in the Memorandum. The lengthy delay specified by the Memorandum for implementing changes may be invoked by the Justice Department in seeking to get this case dismissed. Perhaps the Memorandum was drafted with this strategic use in mind.

Press coverage of the July 26 tweets showed overwhelming opposition and criticism from media, many government officials, and members of both parties in Congress. Those who voiced support of the president's announcement came from the House Republicans who had waged a losing battle to amend a

pending Defense budget measure to ban use of any appropriations to pay for sex reassignment surgery for military members, and there were soon press reports that supporters of that amendment had specifically asked the president to take steps to prevent spending federal funds for this purpose. Furthermore, it was reported that threats had been made to block passage of the Defense measure ? which was intended to provide some funding for the president's project to "build a wall" along the U.S. border with Mexico (reflecting his ignorance of world history, and most specifically of the spectacular failure of the vaunted "Maginot Line" constructed after World War I to protect France from any future invasion by German military forces) ? unless the president prevented military expenditures on sex reassignment procedures. To the simple-minded president, the solution was obvious. Reviving a ban on all military service by transgender individuals meant that there would be no openly transgender individuals in the military seeking to have such procedures performed and, since reversing Obama Administration policies regardless of their merits seems to be the main goal of many of Trump's actions, simply overturning the Obama Administration policy became his simplistic solution to his political problem. There was no indication that Trump made this decision after consulting "my Generals" or military experts ? at least, the White House never revealed the names of any such individuals who were consulted, and it appeared that Secretary Mattis had merely been informed of the president's intentions the night before the tweets. One suspects that Trump's "expert" was likely former White House Chief Strategist Steve Bannon, a former Marine.

The August 25 Memorandum did not necessarily require the immediate, or even eventual, discharge of all transgender personnel, and appeared to give Secretary Mattis discretion to come up with an implementing plan and at least six months to do it, while barring any action against transgender service members during the intervening time. Rather, it charged Defense

Secretary Mattis with the task of coming up with implementation procedures, and stating that he could submit written recommendations documenting that the concerns expressed in the Memorandum were not supported by banning transgender service. In typical "kick the can down the road" Trump style (which is, admittedly, a typical style of U.S. politicians generally, only more pronounced in this president), it leaves open the possibility that the Obama Administration policies will ultimately be left in place, provided Mattis asks for this in writing, summoning persuasive evidence that nothing is gained and much is lost by preventing transgender individuals from enlisting, by being commissioned out of the service academies, or by blocking transgender service members (including commissioned officers) from continuing their service. Press accounts noted that the anticipated expense of covering sex reassignment surgery was dwarfed by the annual military expenditure on Viagra and similar drugs (who knew, as Trump might ask, that the Defense Department, the government's most "macho" agency, was spending so much money to stiffen the limp genitals of male members?), and that the replacement costs for several thousand fully-trained and productive military members would far outweigh the costs of down-time for the relatively small number of individuals at any given time who might be unavailable for assignment while recovering from sex reassignment surgery. (There is no indication that the other steps in gender transition, including hormone therapy, are disabling in a way that would interfere with military service.)

As worded, the Memorandum leant itself to the interpretation that with the passage of time, as the immediate political problem that "inspired" Trump to emit his tweets had been surmounted, sober heads could prevail, Mattis could reassure the transgender troops that nothing was happening right away, and eventually the president would accept Mattis's written recommendation to allow transgender individuals to serve after all. (This interpretation depends on Mattis having the fortitude and political courage to tell the president, as

September 2017 LGBT Law Notes 296

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