In July 2017, President Trump announced on Twitter that the U.S. military would no longer allow transgender individuals to openly serve in the armed forces. The next month, President Trump formalized the ban by directing the Secretary of Defense and the Secretary of Homeland Security to return to a policy of prohibiting open service by transgender individuals, and he also directed the Secretary of Defense to “submit . . . a plan for implementing” this policy, which the Secretary of Defense subsequently did.

Shortly after the President issued his formal directive, Ryan Karnoski, a transgender man who wished to serve his country by joining the military, brought suit along with current military service members who are transgender, claiming that the ban violated the equal protection and due process guarantees of the Fifth Amendment and the free speech guarantee of the First Amendment.  The district court issued a preliminary injunction preventing the military from implementing the ban.

The plaintiffs subsequently filed a motion for summary judgment, and CAC filed a friend-of-the-court brief in support of Karnoski and the other transgender military service members challenging this policy.

While the district court did not rule on the merits of the plaintiffs’ constitutional claims, it did leave in place the preliminary injunction it had previously issued. It also, citing CAC’s brief, noted that the government’s claims that the ban is intended to “promote ‘military lethality and readiness’ and avoid ‘disrupt[ing] unit cohesion, or tax[ing] military resources’ are strikingly similar to justifications offered in the past to support the military’s exclusion and segregation of African American service members, its ‘Don’t Ask, Don’t Tell’ policy, and its policy preventing women from serving in combat roles.” The government appealed to the Ninth Circuit Court of Appeals.

As we did in district court, CAC filed a friend-of-the-court brief in support of Karnoski.  Our brief made three principal points. First, the Fifth Amendment guarantees equal protection for all and forbids the government from enacting policies that single out a class of individuals for disfavored legal status. Second, the government’s justifications for the ban on transgender service members—that it is needed to maintain unit cohesion and military effectiveness—were similar to justifications that were offered in favor of past military policies that discriminated on the basis of race, sexual orientation, and gender. Despite those fears, however, each of those policies was repealed without any negative effect on unit cohesion or military effectiveness, and in fact, military experts agree that a more inclusive service force actually strengthened the military’s effectiveness. Third, much like these prior discriminatory military policies, the Trump administration’s ban on transgender service members had no rational connection to a legitimate government interest. All of the evidence, including the military’s own data and research, confirms that open service by transgender people does not negatively affect unit cohesion or military effectiveness, and the ban therefore could not withstand judicial review.

In June 2019, the Ninth Circuit issued an opinion, sending the case back to the district court to reconsider its decision in light of a new version of the policy that the Trump administration announced in 2018.