Fil­ing ‘reads like pure fic­tion’

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The Trump ad­min­is­tra­tion called a le­gal chal­lenge to Pres­i­dent Trump’s trans­gen­der mil­i­tary ban “pre­ma­ture sev­eral times over” in a brief filed Oct. 4 seek­ing to block LGBT le­gal groups from putting the pol­icy on hold as lit­i­ga­tion against it moves for­ward.

In a 49-page fil­ing, the U.S. Jus­tice Depart­ment re­sponds to a re­quest for a pre­lim­i­nary in­junc­tion in Doe v. Trump, the law­suit filed by the Na­tional Cen­ter for Les­bian Rights and GLBTQ Ad­vo­cates & De­fend­ers pend­ing be­fore fed­eral court in D.C. The law­suit was as­signed to U.S. District Judge Colleen Kol­lar-Kotelly, a Clin­ton ap­pointee.

The brief takes is­sue with the fil­ing of the law­suit, not­ing it was filed af­ter Trump tweeted he’d ban trans­gen­der ser­vice mem­bers, but be­fore he for­mally di­rected the Pen­tagon to take that ac­tion in a White House memo.

“The pres­i­dent’s mem­o­ran­dum states that no pol­icy changes to the sta­tus quo will be ef­fec­tive un­til at least af­ter Jan­uary 2018,” the brief said. “The pres­i­dent fur­ther di­rected the sec­re­tary of de­fense to de­ter­mine how to ad­dress trans­gen­der in­di­vid­u­als cur­rently serv­ing in the mil­i­tary and that no ac­tion be taken against such in­di­vid­u­als un­til af­ter a pol­icy re­view is com­pleted.”

More­over, the brief points out that a re­view at the Pen­tagon on im­ple­men­ta­tion of Trump’s ban is on­go­ing and De­fense Sec­re­tary James Mat­tis has is­sued in­terim guid­ance bar­ring sep­a­ra­tion of trans­gen­der ser­vice mem­bers and al­low­ing them to re-en­list in the armed forces.

“Plain­tiffs’ cur­rent com­plaint and mo­tion ac­count for none of this,” the brief said. “The amended com­plaint does not even men­tion, let alone chal­lenge, the in­terim guid­ance in ef­fect to­day. Sim­i­larly, plain­tiffs de­clined to bring the in­terim guid­ance to the court’s at­ten­tion in con­nec­tion with their pend­ing mo-

Oc­to­ber 13, 2017

tion, even though the guid­ance plainly con­sti­tutes a sig­nif­i­cant de­vel­op­ment that negates their de­mand for emer­gency re­lief.”

Jus­tice Depart­ment: Pol­icy ‘plainly law­ful’

The plain­tiffs in the law­suit are six anony­mous trans­gen­der ser­vice mem­bers who are cur­rently in the armed forces and fear dis­charge un­der Trump’s pol­icy, as well as two named plain­tiffs: Re­gan Kibby, a stu­dent serv­ing at the U.S. Naval Academy, and Dy­lan Ko­here, who’s par­tic­i­pat­ing in the Re­serve Of­fi­cers’ Train­ing Corps at the Univer­sity of New Haven.

The Jus­tice Depart­ment ar­gued th­ese plain­tiffs lack stand­ing be­cause none of them “face a cur­rent or im­mi­nent threat of in­jury dur­ing the in­terim pe­riod while the pol­icy is be­ing stud­ied.” With re­spect to the two named plain­tiffs, the brief main­tained “they will not be in a po­si­tion to ap­ply for an of­fi­cer’s com­mis­sion un­til af­ter they com­plete their re­spec­tive cour­ses of study in 2020, at the ear­li­est.”

In the event the court were to al­low plain­tiffs to chal­lenge the pol­icy, the Jus­tice Depart­ment ar­gued such a chal­lenge would fail be­cause the pol­icy “is plainly law­ful.”

The fil­ing ar­gued that courts have tra­di­tion­ally de­ferred to the mil­i­tary on its on de­fense poli­cies on the ba­sis the ju­di­ciary isn’t suited to sec­ond-guess the mil­i­tary on the is­sue. Fur­ther, the Jus­tice Depart­ment ar­gues an in­junc­tion would com­pro­mise the on­go­ing study on trans­gen­der ser­vice at the Pen­tagon.

“The pub­lic in­ter­est would be sig­nif­i­cantly harmed if an in­junc­tion pre­cluded the pres­i­dent and sec­re­tary of de­fense from re­ceiv­ing ex­pert ad­vice on im­por­tant is­sues of mil­i­tary per­son­nel pol­icy and act­ing in light of the re­sults of that study,” the brief said. “And even if plain­tiffs some­how hur­dle ev­ery prob­lem with their chal­lenge, there is no ba­sis for the world­wide in­junc­tion against the mil­i­tary they re­quest.”

The Jus­tice Depart­ment con­cluded the court should grant its mo­tion to dis­miss the case and re­ject the LGBT le­gal groups’ re­quest for a pre­lim­i­nary in­junc­tion.

Sign­ing the brief is Act­ing As­sis­tant At­tor­ney Gen­eral for the Civil Di­vi­sion Chad Readler, Deputy As­sis­tant At­tor­ney Gen­eral Brett Shu­mate, Branch Di­rec­tor John Griffiths, Deputy Di­rec­tor An­thony Cop­polino, Se­nior Trial Coun­sel Ryan Parker and Trial At­tor­ney An­drew Carmichael.

Ab­sent from the brief is the widely held per­cep­tion that although Mat­tis set up a re­view to study trans­gen­der mil­i­tary ser­vice, the out­come is pre­de­ter­mined and just a process to im­ple­ment Trump’s ban on trans­gen­der peo­ple in the mil­i­tary. The brief also ig­nores the per­cep­tion the ban orig­i­nated with Trump, not the mil­i­tary.

LGBT groups re­sponded to the brief by ridi­cul­ing the as­ser­tion a re­quest for le­gal re­lief at this time for trans­gen­der ser­vice mem­bers is pre­ma­ture.

Jen­nifer Levi, di­rec­tor of GLAD’s Trans­gen­der Rights Project, said in a state­ment the fil­ing “reads like pure fic­tion.”

“It states a fan­tasy that the pres­i­dent’s an­nounce­ment of a ban on mil­i­tary ser­vice for trans­gen­der peo­ple has changed noth­ing,” Levi said. “That’s sim­ply not true. Ev­ery day this reck­less ban stays in place, our mil­i­tary strength is di­min­ished and our coun­try is less safe for it. We are op­ti­mistic the court will see through this smoke­screen and halt the ban.”

Shan­non Min­ter, le­gal di­rec­tor for the Na­tional Cen­ter for Les­bian Rights, said in a state­ment the Jus­tice Depart­ment is “ask­ing the court to turn a blind eye to the dev­as­ta­tion the Pres­i­dent has caused in the lives of real peo­ple and real fam­i­lies.”

“Be­cause of the Pres­i­dent’s ban, smart, ded­i­cated, and ide­al­is­tic young peo­ple like our plain­tiffs Re­gan Kibby and Dy­lan Ko­here are barred from ful­fill­ing their dreams of mil­i­tary ser­vice,” Min­ter said. “And trans­gen­der peo­ple who are al­ready serv­ing have been told that their skills, train­ing and years of ded­i­cated ser­vice are not val­ued. The ban has left them scram­bling to make new plans for their fu­tures, just as it has un­der­mined our na­tion’s se­cu­rity. This is the ex­act op­po­site of how mil­i­tary pol­icy should be made.”

The brief re­sponds to one of the four pend­ing law­suits in fed­eral court against Trump’s trans­gen­der mil­i­tary ban. In the three other law­suits — one filed by OutServe-SLDN and Lambda Le­gal, one filed by the Amer­i­can Civil Lib­er­ties Union, one filed by Equal­ity Cal­i­for­nia — the pro-LGBT le­gal groups have sim­i­larly re­quested pre­lim­i­nary in­junc­tions against the ban, although the Jus­tice Depart­ment hasn’t yet re­sponded in those cases.


The Jus­tice Depart­ment ar­gues a le­gal chal­lenge to Pres­i­dent Trump’s trans­gen­der mil­i­tary ban is ‘pre­ma­ture.’ (Photo by Michael Vadon; courtesy Wikimedia Com­mons)

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