Jon W. Davidson’s work day began at 6:30 a.m. Pacific time on Wednesday, moments after President Trump made the unexpected announcement on Twitter that he would ban transgender people from serving in the military.
Davidson, legal director of the LGBT rights group Lambda Legal, was still processing the president’s out-of-the-blue tweets when the worried emails started pouring into his inbox. Some came from troops fearing discharge, others from people just trying to wrap their heads around Trump’s decision.
Around 9 p.m., more than 14 hours later, Davidson said he had just finished reading all the messages.
“We’re hearing from all sorts of transgender people today, asking things like, ‘Did I just get fired by tweet?'” Davidson told The Washington Post. “People are scared. They don’t know what this really means.”
Across the country, attorneys and advocacy groups like Lambda are gearing up to challenge Trump’s decision in court, saying potential plaintiffs are already lining up to file suit. They argue it runs afoul of the Constitution’s Equal Protection and Due Process clauses, discriminates against a vulnerable group and lacks the “rational basis” necessary to be upheld by federal judges.
The only thing keeping them from the courthouse for now is the ambiguity of the announcement. The president has issued no executive order, no policy memo, no guidance, no rulemaking — just a string of tweets, in classic Trump fashion.
At the first sign of a formal policy, Davidson and others are prepared to sue the government on behalf of current transgender service members and those seeking to enlist. The rush of litigation, if it comes, could wind up resembling the flurry of lawsuits filed by immigration advocates after Trump issued his travel ban earlier this year, many of them fighting detentions and deportations and challenging the legality of the executive order.
“We believe that any such change in policy would be absolutely unconstitutional,” Davidson said of the transgender ban, “and it violates fundamental notions of fairness in the military.”
The LGBT military group OutServe-SLDN said it would join the effort “in a heartbeat,” along with the National Center for Lesbian Rights, which called the move a “bizarre assault on these dedicated service members.” The American Civil Liberties Union also threatened to file suit, calling on transgender services members to get in touch with the organization.
“This is an outrageous and desperate action,” ACLU senior staff attorney Joshua Block said in a statement. “There is no basis for turning trans people away from our military and the ACLU is examining all of our options on how to fight this.”
Trump’s Twitter fiat would reverse a year-old Obama administration decision to allow transgender military members to serve openly, and it could result in thousands of active-duty troops being discharged, as The Post reported Wednesday. In his tweets, the president offered two rationales for the move: medical costs and “disruption.”
“Please be advised that the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military,” Trump wrote. “Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.”
Pressed by reporters on how such a policy would be carried out, White House spokeswoman Sarah Huckabee Sanders said there was no implementation plan yet and did not discuss Wednesday whether current transgender troops would be allowed to continue serving. Thousands of service members are transgender, with as many as 11,000 in the reserves and active-duty military, according to a recent Pentagon-commissioned study.
John Culhane, a constitutional law professor at Delaware Law School, predicted the Trump administration “may soon learn that singling out a class of people for exclusion violates the constitutional guarantee of equal protection under the law.” In a commentary for Politico on Wednesday, Culhane noted that untold numbers of transgender soldiers came out and others enlisted as a result of the Obama administration policy that allowed them to serve openly. Discharging them, he wrote, would create problems of “reliance,” the legal principle of acting on another’s promise.
“If trans people are discharged, lawsuits will follow,” Culhane wrote. “Even if they aren’t, we can expect attorneys to seek a declaration from courts that no such discharges would be legal.”
Courts give extra deference to the military on personnel matters, but that “doesn’t mean the military is above the law,” according to Sarah Warbelow, the Human Rights Campaign’s legal director, who told Reuters that Trump’s declaration amounted to “discrimination on the basis of sex and identity.”
Davidson, of Lambda, echoed her remarks, saying that while Trump had considerable powers as commander in chief, military policies are far from unreviewable in court. Davidson also argued that Trump’s reasons for enacting a ban on transgender people in the military were “demonstrably false” and would be incorporated in his group’s challenge.
“Transgender people have been serving openly for a year and there have been no disruptions,” he said. “That disproves this notion that there’s some threat to military readiness and unit cohesion.”
In the event that Trump’s proposal does wind up in federal court, it’s not clear how the administration would defend it. Sanders, the White House spokeswoman, offered the faintest of hints Wednesday, telling reporters that the president’s decision focused solely on military readiness.
“Look, I think sometimes you have to make decisions, and once he made a decision, he didn’t feel it was necessary to hold that decision, and they’re going to work together with the Department of Defense to lawfully implement it,” Sanders said. She added that Trump had informed Defense Secretary Jim Mattis of his move on Tuesday.
Mattis, who was on vacation, didn’t comment on the issue Wednesday. The Pentagon referred questions about Trump’s tweets back to the White House.
In the interest of fairness, it would be helpful to include more details here elucidating Trump’s decision, but such insights are hard to come by.
For the time being, Davidson and other civil rights attorneys have stressed that nothing about existing military policy has changed yet and that the president’s tweets carry no force of law.
“It’s so strange to be dealing with a situation and you’re not sure what to believe is true and whether he’ll do what he says he’s going to do,” Davidson said. “We’re in an intense period right now.”