Trump administration moves to dismiss first lawsuit against transgender military ban

Trump tweeted that transgender members will not serve "in any capacity."

ByABC News
October 6, 2017, 6:17 PM

— -- U.S. Department of Justice (DOJ) attorneys moved to have the lawsuit against the administration's transgender military ban dismissed in a filing Wednesday night, arguing that the "challenge is premature several times over."

This is the first of four lawsuits that have been filed in opposition to the administration's ban against transgender people serving in the military and it's the first DOJ response to one of the lawsuits.

DOJ argues that because the policy has not been fully implemented and none of the plaintiffs "face a current or imminent threat of injury during the interim period while the policy is being studied," it should be dismissed.

"The government’s response reads like pure fiction," said Jennifer Levi, Director of GLBTQ Legal Advocates & Defenders' (GLAD) Transgender Rights Project, one of the groups that brought the lawsuit. "It states a fantasy that the president’s announcement of a ban on military service for transgender people has changed nothing," she added in a statement.

At the end of August, President Donald Trump signed a memo on formally directing the Pentagon to ban transgender individuals from openly serving in the U.S. military. The directive gave the Department of Defense six months to develop an implementation plan that will go into effect on March 23, 2018. Trump also directed DOD to stop gender transition-related surgeries with exceptions for individuals whose procedures are underway.

Trump's guidance effectively returns the Pentagon to its policy before June 2016, when then–Defense Secretary Ash Carter allowed transgender individuals to serve openly and permitted the funding of gender transition treatments and surgeries.

The president did not outline a policy for transgender individuals currently serving, leaving open the possibility that some transgender service members could keep their jobs. At the end of August, Defense Secretary Jim Mattis said that transgender service members will be allowed to continue to serve in the military while the Pentagon conducts its implementation study.

"Plaintiffs’ lawsuit challenging military service requirements is premature and should be dismissed for many reasons, including that the Defense Department is actively reviewing such service requirements, as the president ordered, and because none of the Plaintiffs have established that they will be impacted by current policies on military service," said DOJ spokeswoman Lauren Ehrsam in a statement.

The plaintiffs in the case now have until Oct. 16, 2017 to respond to the government's filing, according to Levi.

Former Secretary of the Army Eric Fanning, who served under Obama, disagreed that the lawsuit is premature, saying that a commander-in-chief declaring intent to change the existing order is enough to harm transgender service members. "You have the commander-in-chief saying that there is a class of service members that he doesn't think should be in uniform," he said. "That sets a really negative tone for transgender service members."

Fanning, who was responsible for the U.S. Army's input to a Pentagon working group that assessed the effects of allowing transgender individuals to openly serve, said he found no reason it would hurt military readiness. "Every question should be asked about the impact on readiness, because that's the most important thing, but we asked and answered all those issues," he said.

According to Fanning, the determining factor should be an individual's ability to perform. "I think what you want to do is just, at all points possible, define the requirements for the job, and if an American can do that, I think you should celebrate that American wanting to serve," he said.

The National Center for Lesbian Rights (NCLR) and GLAD filed the lawsuit against the ban in federal court in Washington, D.C., on Aug. 9, 2017, after Trump announced his policy change in a tweet the month before.

On July 26, Trump said in a Tweet that transgender people will not be allowed to serve in the U.S. military "in any capacity."

On Aug. 31, 2017, the civil rights groups filed for a preliminary injunction to immediately stop the ban and added two named plaintiffs to the case, Dylan Kohere and Regan Kibby.

Kibby, a midshipman at the U.S. Naval Academy, said that after the initial shock of Trump's tweets wore off, he felt anger and sadness and worried about the future.

"The future, I had planned for myself was crumbling," he said in an interview with ABC News.

Kibby, 20, who had "always wanted to serve" his country, began at the Naval Academy before the Obama-era defense secretary announced that transgender members of the military could serve openly.

"It wasn’t until after I got to the academy, that I started being open with myself," he said. He came out as transgender to his command during the second semester of freshman year, and was met with "support and respect."

By the end of his sophomore year, the Pentagon had approved plan on the guidance for transgender service members.

Kibby is currently on leave from the Academy because of the Obama-era military requirements to change ones gender.

Before Trump made his announcement, the military’s policy required that transgender individuals had to have eighteen months of stability in their gender identity prior to graduation, which is when Kibby would have been commissioned.

Kibby is now at home in North Carolina, interning at a law office, taking an EMT (Emergency Medical Technician)course and was planning to return to the Academy and graduate in 2020.

But, under Trump’s directive, he won't be allowed to go back, change his gender records, or enter the military.

However, Kibby remains hopeful.

"We are playing the long game, and I think history is on our side," he said.

ABC News' Elizabeth McLaughlin and Luis Martinez contributed to this story.

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