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| Midshipman Regan Kibby and family during Plebe Parents’ Weekend. |
Today, the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates & Defenders (GLAD) filed the first motion for preliminary injunction
to put an immediate halt to Trump’s transgender military ban. At the
same time, NCLR and GLAD amended their initial complaint to include two
new named plaintiffs: Regan Kibby and Dylan Kohere, respectively a
midshipman from the U.S. Naval Academy and a student enrolled in the
Reserve Officers’ Training Corps (ROTC). Powerful declarations in
support of the motion for preliminary injunction from these new
plaintiffs and from top military officials from the Army, Navy, and Air
Force outline why leaving this ban in place would irreparably harm transgender servicemembers and their families and undermine national security.
“Our
motion to halt Trump’s reckless transgender military ban is supported
by top military experts, who know that ripping trained, experienced
servicemembers out of our armed forces—for no reason other than who they
are—will leave gaping holes in our defense, compromise national
security, and inhibit recruitment during a critical time,” said NCLR Legal Director Shannon Minter.
“These plaintiffs are dedicated professionals who simply wish to be
treated the same as other servicemembers. They meet the same standards,
do the same work, and want nothing more than the chance to continue serving our country.”
On Tuesday,
Defense Secretary Jim Mattis announced the timeline for Trump’s
transgender military personnel purge, as outlined in the White House
memo provided to the Pentagon late Friday, August 25. This announcement
confirmed that the military is developing plans for the rapid
implementation of Trump’s ban in accordance with White House guidance.
It also underscores the swiftness and urgency with which the court must
act to prevent transgender servicemembers and their families from
needlessly suffering further severe harms, including the inability to
enlist, exclusion from military education and training, denial of access
to medically necessary healthcare, destruction of the careers of
talented and qualified servicemembers, and the creation of dangerous
gaps within our armed forces.
“This case is about the safety of our nation and the strength of our Armed Forces,” said Jennifer Levi, GLAD Transgender Rights Project Director.
“The military leaders who stand with these plaintiffs know firsthand
the thorough process that went into the military policy the President is
recklessly casting aside. They are speaking up for the courageous
transgender servicemembers in this case because they know that our
military, and our country, are weaker without them.”
A
“preliminary injunction” is a measure the Court can take to prevent
harm from compounding during the time it takes to hear and decide a
case. When determining whether to issue a preliminary injunction, courts
weigh both the severity of the harm and the likelihood that the side
requesting the injunction will win their case based on merit.
MILITARY LEADERS
The
motion for preliminary injunction is supported by powerful declarations
from all three former Service Secretaries (Army, Navy, and Air Force),
the former Deputy Surgeon General for Mobilization, Readiness, and Army
Reserve Affairs, and the former Acting Under Secretary for
Personnel and Readiness who ran the process of studying the potential
impacts of open transgender service on military readiness.
Former United States Secretary of the Army Eric Fanning
Former
Secretary Fanning served as head of the Department of the Army, where
he was charged with managing all matters relating to the United States
Army, including manpower, personnel, reserve affairs, installations,
environmental issues, weapons systems and equipment acquisition,
communications, and financial management. The Army is the largest
service branch of the United States Armed Forces and has an annual
budget of more than $120 billion. The Army is one of the most formidable
ground combat forces on earth and one of the largest employers in the
United States. Many Army personnel are employed in highly technical
roles that require lengthy and expensive specialized training.
In
2010, the repeal of Don’t Ask, Don’t Tell raised questions about the
Armed Forces’ policy on service by transgender individuals. Particularly
among commanders in the field, there was an increasing awareness that
there were already capable, experienced transgender servicemembers in
every branch, including on active deployment on missions around the
world. Secretary of Defense Ashton Carter ordered Brad Carson, Acting
Undersecretary of Defense for Personnel and Readiness, to convene a
Working Group to identify practical issues related to transgender
Americans serving openly in the Armed Forces and to develop an
implementation plan that addressed those issues with the goal of
maximizing military readiness. Former Secretary Fanning oversaw the
Army’s participation in this Working Group, the results of which led to
Secretary Carter’s 2016 announcement that transgender servicemembers
could serve openly.
Former Secretary Eric Fanning said in his declaration
that the Working Group concluded that a ban on transgender
servicemembers from our armed forces would necessitate “the discharge of
highly trained and experienced servicemembers, leaving unexpected
vacancies in operational units and requiring the expensive and
time-consuming recruitment and training of replacement personnel.”
Former United States Secretary of the Navy Raymond Edwin Mabus, Jr.
Former
Secretary Mabus, who is also a former governor of the state of
Mississippi, was charged with comprehensive oversight responsibility for
the Department of the Navy’s annual budget, overseeing the recruitment,
organization, training, supplying, equipping, mobilizing, and
demobilizing of Navy personnel; and overseeing the construction,
outfitting, and repair of naval equipment, ships and facilities. In this
role former Secretary Mabus was also charged with formulating and
implementing policies and programs consistent with national security
objectives established by the President and Secretary of Defense. As
Secretary of the Navy, Mabus was responsible for advising the Navy’s
participation in the Working Group (outlined in Fanning’s description
above).
Former Secretary Mabus said in his declaration
“I oversaw the Navy and the Marine Corps through the end of the United
States military operations in Iraq and the surge of tens of thousands of
United States troops in Afghanistan. I am keenly aware that the
recruitment and retention of capable and qualified servicemembers is of
critical importance to the readiness of the Navy and the
Marines...President Trump’s stated rationales for reversing the policy
and banning military service by transgender people make no sense. They
have no basis in fact and are refuted by the comprehensive analysis of
relevant data and information that was carefully, thoroughly, and
deliberately conducted by the Working Group...Banning transgender
servicemembers will cause the loss of competent and experienced
individuals who will be difficult to replace...Our ability to replace
those individuals will also be hampered by the parallel reduction in the
size of our potential recruiting pool.”
Former Secretary of the United States Air Force Deborah Lee James
Former
Secretary James held responsibility for overseeing the Department of
the Air Force’s annual budget, as well as the organization, training,
supplying, equipping and mobilization of USAF personnel, including
recruitment, retention, and medical policies for active duty and reserve
personnel. Former Secretary James supervised the Department of the Air
Force’s participation in the Working Group tasked with studying the policy and readiness implications of allowing transgender persons to serve openly in the Armed Forces.
The
damaging repercussions of reinstating the ban on transgender service
cited by Former Secretary James in her declaration include: 1) a loss of
highly qualified and trained personnel, reducing military readiness and
operational effectiveness. James notes this is a particularly acute
concern for the USAF, which is currently experiencing a crisis-level
shortage of pilots. 2) Erosion of servicemembers’ trust in their
command structure and its professionalism. 3) Disruption and
distraction not only for transgender servicemembers, but for their chain
of command and their colleagues, who will lose people on whom they
rely. 4) A negative impact on recruitment and retention, and an
arbitrary elimination of otherwise highly qualified and valuable
individuals who wish to serve, including those who are already enrolled
in Reserve Officer Training Corp programs and military academies, based
on a characteristic that has no bearing on fitness for military service.
Former Secretary James said in her declaration,
“It is my assessment, based on my experience as Secretary of the Air
Force and in other leadership positions within the Department of Defense
and other defense-related institutions, that banning transgender people
from enlisting or openly serving in the military would harm both the
military and the broader public interest ...the impact to morale
engendered by the abrupt reversal of the policy permitting open service
by transgender people will not only have an effect on the morale of our
current servicemembers”…[it] will “also have a negative impact on the
USAF’s ability to recruit highly qualified candidates who can perform at
the highest levels necessary to complete the USAF’s core missions.”
Former Acting Under Secretary of Defense for Personnel and Readiness Brad Rogers Carson
Former
Under Secretary Carson, a Rhodes Scholar and University of Oklahoma
College of Law graduate, served in Congress as the Representative for
the State of Oklahoma’s 2nd District. As Under Secretary of Defense for
Personnel and Readiness, Former Under Secretary Carson functioned as the
principal staff assistant and advisor to the Secretary and Deputy
Secretary of Defense for Total Force Management with respect to
readiness; National Guard and Reserve component affairs; health affairs;
training; and personnel requirements and management, including equal
opportunity, morale, welfare, recreation, and quality of life matters
for more than 2.5 million military personnel. At the order of then
Secretary Carter, Former Under Secretary Carson convened a Working Group
to formulate policy options regarding transgender servicemembers.
Former Under Secretary Carson said in his declaration
that the Rand Report produced for the Working Group, “found no evidence
that allowing transgender people to serve openly would negatively
impact unit cohesion, operational effectiveness, or readiness...banning
service by openly transgender persons would require the discharge of
highly trained and experienced servicemembers, leaving unexpected
vacancies in operational units and requiring the expensive and
time-consuming recruitment and training of replacement personnel.”
Former Deputy Surgeon General for Mobilization, Readiness, and Army Reserve Affairs Margaret Chamberlain Wilmoth
Former
Deputy Surgeon General Wilmoth served as the representative of the
Office of the Surgeon General of the United States Army to the Working
Group tasked with studying the policy and readiness implications of allowing transgender persons to serve openly in the Armed Forces. The ultimate finding of the Working Group is that
open service by transgender servicemembers does not impose any
significant burdens on readiness, deployability, or unit cohesion, and
there are no barriers that should prevent transgender servicemembers
from serving openly in the military.
Former Deputy Surgeon General Wilmoth said in her declaration
“The Working Group’s process for developing the protocol and
recommendations was deliberative and thoughtful, involved significant
amounts of research and education, and in the end resulted in a policy
that all services supported. We were very proud to have developed a
policy that treats transgender servicemembers as the equal of their
fellow servicemembers, and as soldiers, sailors, marines, cuttermen, and
airmen first.”
NAMED PLAINTIFFS
Regan Kibby
Midshipman
Kibby has completed two years of education at the United States Naval
Academy with a double major in English and history. He was inspired to
serve both by his father, a Navy veteran, and his early childhood years
in San Diego, a military town with a large Navy base, before moving to
North Carolina with his family. He stated that he has always felt that
he has a duty to serve. In high school, he enrolled in the Junior
Reserve Officers’ Training Corps (JROTC) and by junior year dreamed of
attending a military service academy. Military service academies are
extremely competitive and accept fewer than 10 percent of applicants.
The Naval Academy, as do many other service academies, requires a
Congressional nomination. After a competitive application process,
Midshipman Kibby was accepted to the U.S. Naval Academy.
During
his first year at the U.S. Naval Academy, Midshipman Kibby came out as
transgender, shortly after the time that then Secretary of Defense
Ashton Carter issued an order announcing that transgender people could
serve openly in the military. He followed protocol, informing his peers
and his chain of command. If President Trump’s transgender military ban
is implemented, Midshipman Kibby will not be permitted to complete the
degree he has spent two years working toward or the career that he has
spent a lifetime dreaming of and preparing for through years of JROTC.
Midshipman Kibby said
that President Trump’s transgender military ban “ruins transgender
servicemembers’ lives and ends the careers of trained, qualified members
of our military for no reason other than who they are. After a lifetime
of feeling a sense of duty and preparing to serve, reading Trump’s
tweets was painful, and I saw my future crumbling.”
Dylan Kohere
Dylan
Kohere is an eighteen-year-old first-year student at the University of
New Haven in West Haven, Connecticut and is a member of the Army reserve
Officers’ Training Corps (ROTC) program. Kohere grew up in New Jersey,
and was inspired to serve by his grandfathers’ military service. His
goal is to spend his entire career in the military. Kohere came out as
transgender during his freshman year of high school, where he was
supported by friends and family members and served as president of his
school’s Gay-Straight Alliance. Kohere’s ROTC program had been similarly
supportive thus far, including his Sergeant. If President Trump’s
transgender military ban is permitted to stand, Kohere will lose his
ROTC scholarship, including tens of thousands of dollars toward tuition
and living expenses, and will no longer be able to pursue his dream of a
lifelong military career—based on something that has nothing to do with his ability or performance.
Dylan Kohere said,
“A big part of the reason I was comfortable coming out as transgender
in the ROTC was the announcement in the summer of 2016 that transgender
people would be able to serve openly in the military. I was so excited
that I would be able to achieve my goal of serving while remaining true
to who I am.”
NCLR and GLAD filed the federal lawsuit Doe v. Trump
on August 9, on behalf of transgender servicemembers with nearly 60
years of combined military service across a range of military branches.
Plaintiffs anticipate a hearing on their motion to halt the ban to be
held within weeks.
NCLR and GLAD’s lawsuit, Doe v. Trump, rests on claims of equal protection, due process and estoppel, based on the harm caused by the
reversal of military policy after many servicemembers followed protocol
and informed their chain of command that they are transgender. In
addition to NCLR and GLAD, the plaintiffs in Doe v. Trump are represented by lawyers from Foley, Hoag LLP and WilmerHale.
