Editor’s note: This article appeared originally in Massachusetts Lawyers Weekly, a sister publication of Minnesota Lawyer.
BOSTON — A U.S. Navy officer stationed in Massachusetts is suing to prevent her involuntary discharge pursuant to President Donald Trump’s ban on transgender people serving in the military.
The “Jane Doe” plaintiff alleges in her lawsuit against Defense Secretary Mark T. Esper and Navy Secretary Thomas B. Modly that the transgender military ban violates her constitutional rights.
“Defendants’ policy of excluding transgender persons from military service subjects Plaintiff to unequal treatment based on her sex and transgender status, without lawful justification, in violation of the Equal Protection component of the Due Process Clause of the Fifth Amendment,” states the complaint in Doe v. Esper.
The plaintiff filed her lawsuit on March 17 in U.S. District Court in Boston. According to the complaint, the plaintiff currently serves in the Navy as a lieutenant. Doe received her commission in 2010 and her “exemplary” service record includes two extended tours of duty as a surface warfare officer.
The plaintiff is described in the lawsuit as a “transgender woman who has recently come to terms with her transgender identity.” The lawsuit alleges a military doctor diagnosed the plaintiff with gender dysphoria in June 2019.
“Lieutenant Doe hopes and intends to serve the United States for many more years and aspires to continued advancement and leadership as a Navy officer,” the complaint states.
But there’s a roadblock.
In July 2017, President Trump tweeted that he was reversing a policy adopted just a year earlier by the Obama administration allowing transgender people to serve openly in the U.S. armed forces. That tweet later became a formal directive to the Department of Defense. In February 2018, after legal challenges that resulted in four federal courts issuing nationwide injunctions against the president’s directive, then-Defense Secretary James N. Mattis issued a formal report for the implementation of Trump’s transgender ban.
Mattis concluded that allowing openly transgender people to serve “could undermine readiness, disrupt unit cohesion, and impose an unreasonable burden on the military that is not conducive to military effectiveness and lethality.”
The president subsequently adopted Mattis’ recommendation.
That new DOD policy, which is the target of Doe’s lawsuit, generally disqualifies from military service transgender people with a history or diagnosis of gender dysphoria. The policy makes exceptions for those who have been stable in their biological sex for 36 consecutive months prior to their “accession” into the military. The policy also provides for the retention of service members diagnosed with gender dysphoria after entering into service, so long as they do not require a change of gender.
The DOD transgender ban also includes a grandfather clause for “currently serving” people diagnosed with gender dysphoria since the previous administration’s policy took effect in June 2016 and prior to when the new policy went into effect in April 2019.
Doe seeks a declaration that the DOD’s policy subjecting transgender service members to discharge from the military be declared unconstitutional.
The plaintiff is being represented pro bono by Susan Baker Manning, who works in the D.C. office of Morgan, Lewis & Bockius, and Jennifer L. Levi of GLBTQ Legal Advocates & Defenders in Boston.
Levi says it’s important to note that the suit challenges only the retention aspect of the DOD’s policy and that her client is seeking individualized relief. Those facts distinguish Doe’s lawsuit from other suits challenging Trump’s transgender ban, she says.
“The transgender military ban is destabilizing for the military and significantly weakens the institution,” Levi says. “There is no legitimate justification for discharging someone currently in service, who is highly qualified, wants to continue to serve, and is capable of meeting the standards applied to non-transgender service members.”
Virginia attorney Donna P. Price is a transgender woman who served 25 years on active duty in the Judge Advocate General’s Corps, retiring in 2004 as a captain in the Navy. Price served in the Navy as a male and transitioned to a female in 2014.
According to Price, federal courts historically have deferred to the president as commander-in-chief in terms of setting qualifications for military service. Because of that, Price says she’s not optimistic that a court will “have the guts” to strike down the entire transgender military ban.
“Frankly, the biggest issue is whether Trump has been able to distort the federal judiciary to the point that the ideology of the far right is going to overcome the legal principles enacted by courts and legislatures across the country,” Price says. “The reality of the situation is that gender dysphoria is not a psychological illness.”
However, Price says Doe has a fair chance of success on her individual claim based on the “arbitrary and capricious” nature of differentiating between those service members diagnosed as being transgender within the grandfather period and those like the plaintiff who were diagnosed shortly after the end of the grandfather period.