Trump’s ban on trans service members reignites a legal fight that wasn’t settled during his first term

By Devan Cole, CNN

Washington (CNN) — President Donald Trump’s decision on Monday to reprise a ban on transgender Americans serving in the military will reignite a legal fight over the controversial effort that was met with pushback by federal courts – but not definitively settled – during his first term.

The executive order signed by Trump reinstates a similar ban he issued in 2017 that drew at least four lawsuits arguing the prohibition represented an unconstitutional form of sex discrimination.

LGBTQ advocates have vowed to take Trump back to court over the new ban, which they expect to also face skepticism from judges, particularly given how the legal landscape around transgender rights has shifted, they argue, in their favor since the last ban was scrutinized by courts.

In the set of cases brought during Trump’s first term, federal district courts across the nation temporarily blocked the ban from taking effect. Judges from Washington, DC, to Washington state said that it violated the constitutional rights of transgender people.

The Supreme Court, however, let the ban take effect in 2019, but did not rule on whether it was constitutional before President Joe Biden reversed it in 2021.

“In 2017, every single federal district court that heard a challenge agreed it was unconstitutional,” said Shannon Minter, legal director of the National Center for Lesbian Rights, which brought some of the challenges to Trump’s first ban. “And since that time, the case law holding that discrimination against a person because of their transgender status is unlawful has only become stronger.”

Minter and other LGBTQ rights attorneys said their groups have been in contact with transgender people currently serving in the military and are preparing to file lawsuits over the new ban in short order.

“These are people who devoted their lives to serving our nation. They’re highly accomplished, highly trained. They have been in the military for a long time,” Minter said. “Just expelling people from the military simply because of who they are – completely unrelated to their performance – is a classic case of unconstitutional discrimination.”

A ‘discriminatory impact’

Though the yearslong fight over Trump’s first ban initially yielded court victories for the transgender service members and potential enlistees who brought challenges to it, the legal saga was much more complicated than that.

The matter never made its way before the Supreme Court for a full review. But the high court – in a 5-4 order issued in January 2019 – did allow the ban to take effect while the challenges to it played out in lower courts. The order was strictly procedural: It dealt only with what the administration could or could not do as it defended the ban against the lawsuits but said nothing about the underlying legal questions.

Appeals courts were in the process of considering those questions when Biden took office in 2021 and rescinded Trump’s ban – a move that rendered the cases moot.

But the attorneys who worked on the challenges believe their cases were largely successful given the lower-court rulings that prevented the ban from taking effect for a year and a half.

The judges who issued preliminary injunctions against the first ban said that it was likely unconstitutional because it discriminated against individuals based on their status as transgender.

Among them was US District Judge Colleen Kollar-Kotelly in Washington, DC, who wrote in a scathing ruling that the reasons given for the ban “appear to be hypothetical and extremely overbroad.”

“A bare invocation of ‘national defense’ simply cannot defeat every motion for preliminary injunction that touches on the military. On the record before the Court, there is absolutely no support for the claim that the ongoing service of transgender people would have any negative effective on the military at all,” she wrote.

“In fact, there is considerable evidence that it is the discharge and banning of such individuals that would have such effects,” the judge added.

Other federal courts similarly rejected the Trump administration’s defenses for the ban, with a federal judge in Maryland saying in a case brought there by the American Civil Liberties Union that the government didn’t “identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest.”

“The lack of any justification for the abrupt policy change, combined with the discriminatory impact to a group of our military service members who have served our country capably and honorably, cannot possibly constitute a legitimate governmental interest,” Judge Marvin Garbis wrote in a ruling blocking the ban.

Jennifer Levi, an attorney with GLAD Law who also worked on lawsuits against the first ban and plans to challenge the new one, said that “what we know and understand from the first round of this is that an abrupt change in military policy that isn’t rooted in military interests undermines the safety and security of the country.”

“That is really the analysis from the courts from the first round, and it’s also, you know, a principle well established in the equality guarantees of the Constitution,” she added.

All roads lead to the Supreme Court

Both Levi and Minter told CNN that they believe lawsuits targeting the new ban will be aided in part by the landmark 2020 Supreme Court case called Bostock v. Clayton County. In that matter, the majority, led by conservative Justice Neil Gorsuch, ruled that federal law prohibiting sex-based discrimination in the workplace applies to gay and transgender workers since such action “necessarily” happens because of that person’s sex.

In the years since Bostock was handed down, LGBTQ rights advocates have tried to convince federal courts to apply the reasoning in that case to disputes concerning health care, education, housing and other facets of life.

“Bostock is important for a lot of reasons because it makes it clear that if you target transgender people that that is sex-based discrimination, and therefore heighted scrutiny applies,” Levi said, referring to a level of judicial review that requires government defendants to show that a particular action furthers an important government interest and that the action achieves that goal in a way that is “substantially related” to that interest.

One hurdle the anti-ban litigants could face this time around is securing a nationwide injunction. Some judges have been wary in recent years of issuing such relief in cases challenging policies from the federal government, especially when the jurist is ideologically aligned with the party in power.

But even if some of the challenges result in preliminary injunctions, it’s likely that the Supreme Court would step in again on the part of the administration, said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center.

“I don’t know that anything has happened since then that would make the Supreme Court less likely to do that again,” he said.

When then-Solicitor General Noel Francisco pressed the court to intervene in the matter in late 2018 so that the administration could enforce the ban, he leaned in to the idea that the military should have the ability to enforce its preferred policy even as it was being scrutinized by courts.

Without ruling for the administration, Francisco argued, “the nationwide injunction would thus remain in place for at least another year and likely well into 2020 – a period too long for the military to be forced to maintain a policy that it has determined, in its professional judgment, to be contrary to the Nation’s interests.”

Weeks later, the high court granted Francisco’s request, and the military was free to enforce the ban until Trump left office two years later.

Vladeck said that argument could be persuasive again given the fact that “courts have generally given the military more of a right to discriminate than other government actors.”

“It’s hard to predict how this ends, but it would be a real surprise to me if it ends with some kind of definitive Supreme Court ruling striking down the ban,” Vladeck said. “Short of that, there are lots of other possible permutations.”

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