U.S. seeks to dismiss lawsuit over transgender military ban

The Justice Department is asking a federal court to dismiss a lawsuit challenging President Donald Trump’s moves to curtail military service by transgender people.

The lawsuit was filed in August by the National Center for Lesbian Rights and GLBTQ Legal Advocates & Defenders on behalf of eight transgender individuals, including service members in the Air Force, Coast Guard and the Army, as well as students at the U.S. Naval Academy and in the ROTC program at the University of New Haven.

Trump tweeted in July that the federal government “will not accept or allow” transgender individuals to serve “in any capacity” in the military. That would reverse a 2016 policy change that allowed transgender people to serve openly.

Trump subsequently directed the Pentagon to extend indefinitely a ban on transgender individuals joining the military, and gave Defense Secretary James Mattis six months to come up with a policy on how to deal with those who are currently serving, leaving the door open to permitting their continued service.

Trump also directed Mattis to halt the use of federal funds to pay for sex-change surgeries and medications, except in cases where it is deemed necessary to protect the health of an individual who has already begun the transition.

Late Wednesday, the Justice Department filed a brief asking a U.S. district judge in Washington to dismiss the lawsuit.

The lawsuit “is premature and should be dismissed for many reasons, including that

the Defense Department is actively reviewing such service requirements, as the president ordered,” said Justice Department spokesman Lauren Ehrsam. She said none of the plaintiffs have established that they will be affected by current policies on military service.

The two advocacy groups who filed the lawsuit assailed that assertion, saying there was a “compelling need” to halt the administration’s efforts.

“Transgender Americans looking to enlist are not able to do so, and currently serving transgender service members have been demeaned and stigmatized, denied health care, and are facing the loss of their professions, livelihoods, health care, and the post-military retirement they have worked hard to earn,” the groups said Thursday.

The groups highlighted the uncertainty now facing Dylan Kohere, the University of New Haven student, and Regan Kibby, the Naval Academy student.

“Because of the president’s ban, smart, dedicated, and idealistic young people like our plaintiffs … are barred from fulfilling their dreams of military service,” said Shannon Minter, legal director for the National Center for Lesbian Rights.

The Justice Department brief argued that the lawsuit, even if it were allowed to proceed, was likely to fail.

“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,” the brief said.

Continuing the shift by the Justice Department against the more gay-friendly policies championed by President Barack Obama’s administration, Attorney General Jeff Sessions decided Thursday that the civil-rights law that prohibits discrimination in the workplace does not apply to transgender employees.

Sessions reversed a 2014 decision by a predecessor, Eric Holder, that Title VII of the Civil Rights Act, which prohibits discrimination based on sex, also prohibits employers from taking any actions based on a person’s gender identity.

Although Title VII “provides various protections to transgender individuals,” Title VII does not prohibit discrimination based on someone’s gender identity, because the law, written in 1964, does not mention it, Sessions wrote in a memorandum. “‘Sex’ is ordinarily defined to mean biologically male or female.”

“The Department of Justice cannot expand the law beyond what Congress has provided,” said Devin O’Malley, a Justice Department spokesman. “Unfortunately, the last administration abandoned that fundamental principle, which necessitated today’s action.”

Information for this article was contributed by David Crary of The Associated Press and by Joseph Tanfani of the Tribune News Service.