13 Powerful Briefs Filed in Opposition to the Transgender Military Ban

Retired Military Officers and Surgeons General, Iraq and Afghanistan Veterans of America, Service Women’s Action Network, the Korematsu Center, Military Historians, National Women’s Law Center, the NAACP Legal Defense and Education Fund, Inc., 19 States, and More Go on the Record Opposing the Transgender Military Ban  

The briefs, described below,  were filed at the U.S. Court of Appeals for the District of Columbia Circuit in Doe v. Trump, a case brought by GLAD and NCLR, with support from cooperating attorneys at WilmerHale and Foley Hoag LLP, challenging the Trump-Pence transgender military ban.

VETERANS GROUPS SPEAK OUT IN SUPPORT OF MILITARY SERVICE BY TRANSGENDER AMERICANS IN TWO COMMANDING BRIEFS

“When my Black Hawk helicopter was shot down in Iraq, I didn’t care if the American troops risking their lives to help save me were gay, straight, transgender, or anything else. All that mattered was they didn’t leave me behind.”
– Tammy Duckworth, Senator and decorated war veteran.

Allowing transgender troops to openly serve strengthens our military, and is critical to the ability of all branches of our armed forces to recruit and retain qualified servicemembers, according to sixteen veterans advocacy groups and service organizations submitting two friend-of-the-court briefs:

1. Brief of United Military Voices

Allowing trans troops to openly serve strengthens our military.

Key points from the brief include:

• The military’s strength comes from the fierce bond between service members. These bonds are forged from day one in training and through service members’ shared values of loyalty, duty, respect, integrity and honor. These bonds, which are so much stronger than any differences that might preoccupy people in day-to-day civilian life, carry service members through life-or-death situations.
• A desire to serve our Nation and shared values cuts across individual differences to create cohesive military units and a ready fighting force. When you put on the uniform, differences fall away and what matters is that you have each other’s backs.
• The military recruits people from all walks of life, and that diversity of perspectives and experiences leads to better problem solving and makes our military stronger. The military is most effective when it stands by its values of loyalty, duty, respect, integrity and honor.
• We need every qualified servicemember who is willing and able to serve. Imposing additional barriers that prevent some capable individuals from enlisting and serving is not only wrong, it weakens the military.

This brief includes powerful words from veterans and servicemembers:

“The most effective units I saw were those that had people with different perspectives who could think about how to solve a problem in a way you never thought of. When I was in the Middle East I wanted a unit comprised of a variety of people, that way I knew that when a problem occurred, and one always occurred, we would be thinking about how to tackle it from all the angles.  All I, and my team cared about, was how do we solve the problem.” – Marine Veteran

“I am offended when I am told by people that we cannot encounter or handle a new situation such as transgender troops. It flies in the face of everything that I have seen and know about the military. It is demeaning. We are responsible for fighting for this country, risking our lives but somehow we are not trusted to be able to function if one of teammates is transgender. This is not the military I remember.

“I cared about all my Marines deeply regardless. I cared about my trans Marine the same way I cared about my deeply religious Southern Baptist Marine… I was already intimately involved with Marine’s lives. That’s just the way it is. Commanding a transgender soldier is no different.” – Marine Corporal

“I was one of less than maybe ten people that performed a particular highly specialized job in the navy.  I was also one of the top people in my field.  If I had been kicked out, the Navy would have lost an excellent, productive service member, and would have had to spend a lot of time and money training someone to replace me.

“Losing marines you trained with is no small thing. Aside from lack of morale, there’s also a lack of mission readiness when you start booting people out whosix have multiple deployments. You still see it. Experience is invaluable. That camaraderie is invaluable. Morale suffers whenever a unit loses people, whether being discharged or losing them in combat.” – Marine Veteran

2. Brief of Iraq and Afghanistan Veterans of America (IAVA), Service Women’s Action Network (SWAN) and Veterans Service Organizations Brief

The effectiveness of our military depends on its ability to recruit and retain qualified servicemembers who can meet its high standards and further its mission.

Key points from the brief include:

• It is imperative that the military grow its ranks—but it faces serious recruitment and retention challenges.
  • Each of the service branches needs more qualified recruits.
  • “There’s a continuous challenge to keep high-quality Marines, especially in the current economy and increasingly competitive civilian job market.”
    – Marine Corps Lt. Gen. Michael A. Rocco, April 2018
• The military would not be meeting its recruiting and retention goals today if it had not eradicated categorical bans and limits on service by previously excluded groups, such as African Americans, women, and LGB individuals.
  • “Consider where our military would be today if past categorical bans and limits on service had not been lifted.  We would likely have seen no General Colin Powell, the first African American chairman of the Joint Chiefs of Staff.  We would likely have seen no Lt. Gen. Susan Helms, the first female Air Force officer to venture into space as part of the crew of the space shuttle Endeavor.  We would likely have seen no Brig. General Tammy Smith, the first openly LGB general in U.S. Army history. And if the Transgender Ban is allowed to stand, we will likely never know what future heroes our country has missed out on, including potentially the very plaintiffs in this case.”
• Transgender servicemembers have already proven themselves capable and qualified.
• Just like the bans and limits in the past, the transgender military ban is based on stereotypes and generalizations—not fact. Transgender Americans who can meet the military’s high standards of service and wish to serve should be, and remain, welcome.
• Foreign militaries have successfully integrated transgender servicemembers into their ranks. It doesn’t pass the laugh test to say that foreign forces can better manage the integration of openly serving transgender service members than the U.S. military, which has a long and successful history of integrating previously socially marginalized groups into its ranks.

MILITARY HISTORIANS: THE USE OF “MILITARY READINESS” AS A COVER FOR DISCOMFORT AND DISCRIMINATION

Throughout history, civilian leaders have often used “military readiness” as a cover for discomfort or even discrimination.

3. Brief of Organization of American Historians, Prof. Jennifer Mittelstadt (Rutgers University), Prof. Ronit Y. Stahl (University of California Berkeley), and 45 Additional Historians of the U.S. Military

Key points from the brief include:

• Over time, the military itself has reversed discriminatory policies, recognizing that military readiness requires reaching out to all Americans to ensure the military has top talent.
• Today the Department of Defense’s Diversity and Inclusion Plan formally recognizes diversity as “a strategic imperative, critical to mission readiness and accomplishment, and a leadership requirement.”
• Allowing transgender Americans to serve and to be recruited by the military would represent a continuation of the military’s historical pattern of inclusion of qualified persons from groups who previously faced discrimination.

EQUAL CITIZENSHIP REQUIRES EQUAL OPPORTUNITY TO SERVE

Historically, social attitudes have led to discriminatory exclusions of qualified groups of people from military service.

4. Brief of Asian American Legal Defense and Education Fund, Fred T. Korematsu Center for Law and Equality, LatinoJustice PRLDEF, and The Leadership Conference on Civil and Human Rights

Key points from the brief include:

• Barring qualified individuals from military service weakens the military, brands those excluded as inferior, and fuels prejudice.
• Military service has historically contributed to tearing down false stereotypes faced by marginalized groups, and participation in military service by individuals from marginalized groups has rightly garnered respect both from fellow servicemembers and in civilian life. For instance:
  • Critical and exemplary contributions from African American soldiers during World War II resulted in a report from the then-President’s Committee on Civil Rights: “[t]he injustice of calling men to fight for freedom while subjecting them to humiliating discrimination within the fighting forces is at once apparent.”
  • Presenting Japanese Americans in the 442nd with a Distinguished Unit Citation, President Truman remarked that “you fought, not only the enemy but you fought prejudice, and you won.”
  • Puerto Ricans who enlisted for World War II were largely withheld from combat. Yet when North Korea invaded the South, the all Puerto Rican 65th Infantry Regiment was rushed to the front lines and the heaviest fighting. Their actions caused General MacArthur to write: “The Puerto Ricans … of the gallant 65th Infantry give daily proof … of their courage, determination…and invincible loyalty to the United States.” When they returned home, like other veterans of color, they used their veteran status to push for civil rights.
  • Women’s participation in military service redefined the false scope of “women’s work” and paved the way for women to participate in other aspects of civil society, including medicine, education, and politics.
  • Public awareness of the honorable service of gay and lesbian warriors helped turn public opinion firmly in favor of allowing gays and lesbians to serve openly in the military.
• Transgender individuals have a history of serving bravely and honorably. This latest move to ban troops who are transgender is a particularly painful betrayal, and hurts both trans troops and the size and strength of our fighting forces.

THE NATIONAL WOMEN’S LAW CENTER, NATIONAL ORGANIZATION FOR WOMEN, NATIONAL PARTNERSHIP FOR WOMEN & FAMILIES AND MORE SAY SEX DISCRIMINATION UNDERLIES TRANSGENDER MILITARY BAN

The transgender military ban rests on the same sex stereotypes used to discriminate against women.

5. Brief of The National Organization for Women Foundation, National Women’s Law Center, California Women Lawyers, The Center for Reproductive Rights, Columbia Law School Sexuality & Gender Law Clinic, Connecticut Women’s Education and Legal Fund, Equal Rights Advocates, Legal Voice, The National Association of Women Lawyers, The National Partnership for Women & Families, and The Women’s Bar Association of The District of Columbia.

Key points from the brief include:

• The Trump administration is trying to resuscitate decades-old sex stereotypes and rationales that have long since been discredited and failed in court.
  • Laws that purport to rest on “biological,” “physical,” or “natural” differences between men and women are most often rooted not in biology or nature but instead in stereotypes rejected by nearly a half-century of sex-discrimination jurisprudence.
  • Since the 1970’s, courts have ruled that a desire to cling to traditional sex roles cannot justify the government’s denial of opportunities to men or women who do not conform to those roles but otherwise meet all standards and qualifications.
• The implementation plan uses “military readiness” or “military effectiveness” as a cover for discrimination and as an attempt to reinforce traditional sex roles. In addition to excluding transgender servicemembers, the plan employs paternalistic rhetoric that insults and belittles the capabilities of women servicemembers who are not transgender.
• Similar arguments failed to justify the segregation of the military based on race, Don’t Ask Don’t Tell, and the former ban on women in combat.

RETIRED MILITARY OFFICERS AND FORMER SURGEONS GENERAL SPEAK OUT AGAINST THE TRANSGENDER MILITARY BAN

6. Brief of 33 Retired Military Officers

“While the President’s policies in this case affect national security, they did not emerge from the sort of national security judgment that deserves—much less compels—judicial deference. Amici well understand the critical importance of considered military expertise to the security of our nation, and the need for the judiciary to defer to that expertise in the appropriate circumstances. But the President should not be allowed to hide behind a cloak of deference a capricious and discriminatory order that will grievously harm not only the service members immediately affected, but also the national security and foreign policy of the United States.”

7. Brief of 3 Former Surgeons General

“The Amici Surgeons General have undertaken a careful review of the DoD Report, the evidence it cites, and the reasoning it employs.2 Amici conclude that the DoD Report’s stated reasons for reinstating the transgender ban are premised on double-standards, and that the rules it would apply to transgender service members, but not to any other members, are not logically supported by the medical and other evidence upon which the DoD Report relies. Because of these serious flaws, the DoD Report fails to show that banning transgender people from military service is rationally, much less substantially, related to the government’s asserted interests in military readiness, unit cohesion, or cost savings.”

AND MORE POWERFUL BRIEFS

8. Brief of NAACP Legal Defense and Education Fund, Inc

Describes the shameful history of discrimination against African Americans in the U.S. Military, and argues that the ban on service by transgender Americans borrows from the same playbook.

9. National Center for Transgender Equality and Other Advocacy Organizations

Laws singling out transgender people merit heightened judicial scrutiny because they are sex-based and because such discrimination has been rampant historically as well as now, and is not based on transgender people’s ability to contribute to society.

10. Brief of American Medical Association, WPATH, and 6 Other Health Care Organizations

“There is no legitimate medical reason why transgender individuals should be excluded from the military or denied transition-related health care. Being transgender does not diminish a person’s ability to serve in the military.”

11. Brief of 19 States and the District of Columbia
(Massachusetts, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Virginia, Vermont, plus the District of Columbia)

“Reinstating a ban on transgender people serving in the military will harm the amici states and our residents.”

12. Brief of Trevor Project

“Excluding transgender people from the military denies them the opportunity to answer the noble call to serve their country, and this act of discrimination deprives them of full membership in society.”

13. Brief of Constitutional Accountability Center

• The constitution guarantees equal protection for all and forbids the federal government from enacting policies singling out a class of individuals for disfavored legal status.
• The government’s justifications for the ban on open service by transgender service members are similar to those that were offered to justify past discrimination on the basis of race, sexual orientation, and gender.
• Like prior discrimination by the military, a ban on open service by transgender service members is not rationally related to any legitimate government interest.