Rule of Law Clinic Files Amicus Brief in Transgender Service Member Ban Case

On October 27, 2017, the Rule of Law Clinic filed an amicus brief on behalf of 46 retired military officers and former national security officials as part of the ongoing Stone v. Trump litigation involving the transgender service member ban. The case was brought in the District of Maryland, and was filed by attorneys at the ACLU and Covington & Burling LLP on behalf of transgender military service member Brock Stone. It is one of three ongoing lawsuits challenging the Trump Administration’s ban on the service of openly transgender individuals in the U.S. military.

In the brief, a group of senior retired military officers and former national security officials argue that the ban departs sharply from decades of executive practice involving military policy changes and that the action harms the national security interests of the United States. Signatories include former Secretaries of Defense Chuck Hagel and Leon Panetta, General Stanley McChrystal, General Michael Hayden, and Admiral James G. Stavridis.

“[T]he President’s actions here represent a remarkable departure from decades of practice across multiple administrations regarding the proper approach to making major policy changes on personnel issues within the U.S. military,” states the brief. “[S]uch an arbitrary process resulted in a policy that the evidence overwhelmingly shows will impair our military’s readiness, harm unit cohesion, deplete urgently needed military resources, and undermine the foreign policy of the United States.”

Law students who worked on drafting the brief were supervised by Sterling Professor of International Law Harold Hongju Koh and Visiting Clinical Lecturer in Law Phil Spector. Students received additional support from Matt Blumenthal ’15, a Clinic Fellow and former Marine Infantry Officer who now works as a private attorney.

“Our nation and our service members deserve national security and defense policy that is prudent, serious, and in accordance with American values,” said Blumenthal. “The President's ban on transgender military service is none of these things. Every American with the capacity to enhance our military's combat effectiveness deserves a chance to serve with dignity and respect, regardless of race, creed, sexuality, or gender identification.”

The four students involved in the case—Yusef Al-Jarani ’19, Chris Looney ’19, Georgia Travers ’19, and Tianyi Xin’ 19—each brought their unique personal and professional experiences to assist in researching and drafting the brief with some having close family in the military and others having served themselves.

“I think that we as a nation ought to honor the sacrifices of our service members by ensuring that they are treated fairly and by doing everything we can to strengthen our military’s readiness so that they are prepared for their mission,” said Xin, a second-year law student and former Army Officer. “This brief argues that the recent transgender service member ban does neither.”

“As a Muslim American, I believe that America's diversity is one of its greatest strengths,” said Al-Jarani, a second-year law student from Ohio whose grandfather served in the Korean War.

“Upholding the basic principle that anyone who is willing and able to serve in the military should be free to do so without facing arbitrary discrimination is fundamental to who we are as a country,” said Looney, who served as a Peace Corps volunteer in Burkina Faso and as a journalist in Gaziantep, Turkey.

Georgia Travers, a second-year law student, also has close ties to the military. Her grandfather was a career naval officer, serving as an aviator in World War II and the Korean War, and subsequently as the naval attaché to Iran and Iraq. Her maternal grandfather drove landing crafts as a naval officer in World War II, for which he received a Bronze Star and a Purple Heart. Travers’ uncle also served in Vietnam and her cousin currently serves in the Navy.

Spector said it was a privilege for the Clinic to be able to develop this brief on behalf of such a distinguished group of retired military officers and national security officials.

 “The brief shows that the President’s actions here were ill-considered, at odds with military decision-making on major personnel issues throughout American history, and will do serious harm to the national security and foreign policy of the nation,” said Spector. 

On October 30, 2017, in Doe v. Trump—the first of the three ongoing transgender military ban cases filed in federal courts—the U.S. District Court for the District of Columbia ruled in favor of the plaintiffs and enjoined the transgender military ban from enforcement. Decisions have not yet been made in the two other pending cases, Stone v. Trump in the District of Maryland and Karnoski v. Trump is Western District of Washington. A hearing was held in Stone v.Trump on November 9, 2017, at which time lawyers for the plaintiffs cited the Clinic’s brief.

The Rule of Law Clinic focuses on maintaining U.S. rule of law and human rights commitments in four areas: national security, antidiscrimination, climate change, and democracy promotion. In addition to its work on the transgender military service member ban, the Clinic has also recently worked on issues related to the recent travel ban litigation, the Trump Administration’s announced withdrawal from the Paris Climate Change Agreement, redistricting, and discrimination against Muslim groups.