Working with GLBTQ Legal Advocates & Defenders (GLAD) and the National Center for Lesbian Rights (NCLR), we are currently representing active and aspiring transgender service members in their lawsuit challenging the government’s ban on their ability to serve in the military. The military’s current policy is to discharge or deny enlistment to anyone who will not serve in the gender to which they were assigned at birth or who is undergoing hormone therapy or other gender-confirmation treatment. This policy exempts from discharge only a small number of transgender troops who had been serving in secret but who came out after June 2016, under a short-lived policy allowing open service.
In June 2016, after comprehensive review by military experts, the Department of Defense (DOD) announced that transgender people could serve openly in all branches of the military, because open service would serve the military’s best interests. Reversing that policy in July 2017, the President announced that DOD would no longer allow transgender individuals to serve. In February 2018, DOD released a report that detailed the government’s proffered justifications for the policy change.
In a lawsuit pending in the U.S. District Court for the District of Columbia, Lowenstein and co-counsel argue on behalf of active and aspiring transgender service members that the ban on open service unlawfully discriminates against them in violation of the Fifth Amendment. The government has attempted multiple times to get the case dismissed, but the court has rejected those motions and recognized the merit of the claims. The case has therefore proceeded to the discovery phase, in which the parties exchange documents and question witnesses and experts.
In September 2019, the firm won a significant victory when the court rejected the government’s argument that it should automatically be accorded a high level of deference simply because the policy resulted from military decision-making, and ruled that “[a]dditional discovery is needed to determine if the [challenged] Plan is the product of considered military decision-making that reasonably and evenhandedly regulates the matter at issue.” The judge agreed further that DOD could not broadly invoke the deliberative process privilege, which protects documents revealing the process behind government decisions, because “[t]hose documents go to the heart of Defendants’ intent and decision-making process . . . both key issues in establishing the legitimacy of the disputed transgender policy.” The opinion made clear that “Plaintiffs’ need for the information overcomes Defendants’ privilege.”
This critical ruling will allow the team to obtain additional information on the facts behind the government’s decision-making process, whether it reflected a discriminatory purpose to exclude transgender people, and whether the evidence that was considered in – or excluded from – that process supports the government’s decision to implement the ban. We expect the court to schedule a trial sometime in 2020.