Donald Trump on a yellow background. The Trump administration has enacted a trans military ban.
Credit: EPA/Stefani Reynolds/POOL; Francesca Roh/Xtra
Politics
4 min

This U.S. naval officer is suing over Trump’s trans military ban

In a landmark lawsuit, Jane Doe is fighting the U.S. Pentagon to serve as a trans woman

For the first time since the ban on trans military personnel serving openly was enacted last April, a trans naval officer is suing the U.S. Pentagon, claiming the policy will force her out of her job.

In a lawsuit filed in a Massachusetts federal court on Mar. 17, a woman referred to as “Jane Doe” said the Department of Defense guidelines mandating that soldiers must serve in accordance with their “biological sex” leave her with few options to continue her military service. Doe came to terms with her trans identity after undergoing counselling and was diagnosed with gender dysphoria in June 2019, just two months after the trans military ban went into effect.

Transgender troops who were in active duty prior to the implementation of the ban had the option of being grandfathered in, but Doe in’t as lucky. According to the lawsuit, she is facing an “involuntary discharge from service and the end of her Navy career solely because she is transgender.”

Because Doe has chosen to remain anonymous in the lawsuit, she was unable to comment for this story. But Jennifer Levi, director of the transgender rights project with the GLBTQ Legal Advocates & Defenders (GLAD)—which filed the suit on behalf of Doe—says the potential discharge has been “very stressful” for the plaintiff, as it would be “devastating for her to lose both her livelihood and her calling.”

“The military is effective when everybody who can meet the demands of military service is allowed to continue to serve,” Levi says. “There’s no reason for her to be discharged simply for who she is.”

Doe is being represented in her case by GLAD, as well as the Philadelphia-based law firm Morgan, Lewis & Bockius and the LGBTQ advocacy group National Center for Lesbian Rights (NCLR). Shannon Minter, legal director at NCLR, says what makes the lawsuit unique is that it represents the “first challenge that’s been brought since the ban actually took effect.” There are four other lawsuits making their way through the court system, but all were filed prior to April 2019.

The Pentagon has 14 days to reply to the litigation but has reportedly requested more time to respond to the complaint.

Minter also says the aims of Doe’s lawsuit are different from other plaintiffs challenging the trans military ban as a whole. “We’re not asking the court to strike down the ban for everyone across the nation and its entirety,” he said. “We’re asking the court to give relief to this one person. She’s bringing this case because it is her only real hope of being able to remain in the military.”

LGBTQ advocates hope, however, that Doe’s case illustrates what they call the absurdity of the military’s policy banning trans people from service, first announced in a July 2017 tweetstorm by President Donald Trump. (Although Trump has claimed allowing trans people to serve openly in the military would be expensive, disruptive and burdensome, a 2016 study commissioned by the Department of Defense found that trans service would not harm unit cohesion or result in exorbitant costs for the federal government.)

In Doe’s case, Minter says, the plaintiff applied for a “waiver” to be able to continue her military service, but the Pentagon “will not specify what the criteria are” to be considered an exception to the rule or even who is in charge of making that decision. No trans soldier, Minter adds, has successfully applied for a waiver. Even if other exceptions had been granted, the policy would still amount to anti-trans discrimination.

“No one else is subject to a categorical ban from which you can theoretically seek some mysterious waiver,” he says. “The very requirement that you have to seek a waiver is just another way you’re being treated differently than everyone else.”

Nicolas Talbott knows first-hand how draconian and harmful the military’s current guidelines can be for transgender troops. Now 26, Talbott was enrolled in an Army ROTC program the day Trump’s tweets were posted and said it felt like his “entire future had been taken away instantaneously.” He was told by superiors he could continue with the program but would not be permitted to graduate with the other students.

“It was like somebody had knocked the wind out of me,” Talbott says. “I didn’t know what my next move was going to be.”

Nic Talbott looks up from his computer at his home in Lisbon, Ohio. Talbott is part of a lawsuit to overturn the Trump administration's trans military ban.
Nic Talbott looks up from his computer at his home in Lisbon, Ohio. Talbott is part of a lawsuit to overturn the Trump administration's trans military ban. Credit: AP Photo/Keith Srakocic

Talbott eventually signed on as a plaintiff in one of the other pre-April 2019 cases urging the courts to reverse the military ban. Although four different courts issued orders saying the Pentagon could not enforce a policy that was likely to be found unconstitutional, those preliminary injunctions were later reversed by the U.S. Supreme Court, which allowed the ban to officially move forward.

Being forced onto the sidelines for the past three years while the court system debates his right to be treated like every other military recruit has been “crushing,” Talbott says.

“It’s very frustrating for me now watching all of my friends continue to participate in the program and trying to be as supportive as possible for them and be excited for them with all of their accomplishments,” he says. “It’s very frustrating for me to know that I’m perfectly capable of being right there with them. I’m just not able to do so because of factors beyond my control.”

For Minter, one of the most egregious parts of the trans military ban is that it forces out trans service members like Talbott and Doe who would be otherwise fit to serve. During her nine years in the Navy, for instance, Doe has served two tours of duty. A statement accompanying the lawsuit describes her as a “dedicated, highly qualified and successful officer.”

“Every single person in the military has to be deployable,” Minter says. “Trans people have to meet all of the same standards as everyone else. The only thing that this policy does is exclude people who otherwise meet all of the requirements.”