The Fight for Open Transgender Military Service Is Only Beginning

Earlier this week, media reports incorrectly reported that the Pentagon would begin allowing transgender people to enlist in the military despite President Trump’s opposition.

First, in a misleading tweet, the Associated Press reported that the “Pentagon says it will allow transgender people to enlist in the military beginning Jan. 1, despite Trump's opposition.” The tweet and subsequent reports made no mention of the court orders requiring the Trump administration to permit transgender people to enlist or the government appeals seeking to stop enlistments from happening. The suggestion that the Pentagon was defying the president or that there was some goodwill in the administration towards transgender individuals was inaccurate and grossly misleading.

The reporting has since been updated to reflect the actual state of pending litigation, but widespread misinformation about the status of the ban gave a false sense of security that trans people will be able to enlist in the military once the new year begins. But in reality, the Defense Department is fighting back in court to stop transgender people from enlisting and continuing to try to implement the president’s discriminatory ban targeting transgender individuals who currently or intend to serve in the military.

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Three federal courts have now put a preliminary stop to President Trump’s ban on transgender people serving in the military, which he first announced on Twitter in July of this year. Courts in the District of Columbia, Washington, and Maryland have held that the president’s ban is likely unconstitutional and stopped its enforcement while the cases make their way through the courts.

Under existing court orders, the government cannot discharge service members just because they are transgender, must provide medically necessary health care to currently serving individuals who are transgender, and cannot bar enlistment into the military by transgender recruits beginning on January 1, 2018. On Tuesday, the government filed an emergency stay application in the ACLU’s case seeking to continue barring transgender people from enlisting in the U.S. military into the new year. Last week, the government filed a comparable motion in a District of Columbia case, which was rejected by that court.

The ACLU is fighting back every step of the way. This week we are opposing the government’s efforts to put our victory on hold and we will continue to fight back through the courts, over the holidays, and into the future, until we can rest assured that we have obtained justice for transgender service members.

Our clients are men and women who are transgender who have been serving this country for years, some of whom want to commission as officers but would be barred from doing so by the president’s proposed ban on enlistments by transgender individuals. While the president’s ban stigmatizes and threatens transgender service members every day, these brave individuals are continuing to fight for their careers, their fellow service members, and for the Constitution.

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Vlad D.

Wishful thinking. While military courts have jurisdiction over soldiers who commit crimes in the service, Federal courts can over rule anyone including the POTUS. If the courts find for the POTUS, trans soldiers can onlu be discharged, no other punitive action may be taken. Until the courts rule that Trump's orders in this regard are lawfull he may not issue the order.

Anonymous

I don't know who you are but you know nothing about how the military works. The military is always outranked by civil authorities. Claiming otherwise does not make it so. A president whose power and is not subject to the courts is on his way to being a dictator. As long as a court order stands it vacates a presidential order until it is overruled by a higher court. Troops in the military are not subject to vacated orders and they never will be. I have to wonder if you are even a U.S. citizen.

Anonymous

The Founding Father's purposely limited the Judicial Branch's role in regards to the military to avoid these types of intergovernment conflicts. CONGRESS has most of the power and the Judicial Branch was not given the power to second guess the President when it comes to military regulations by either Congress or the Constitution. Congress has the power to check the President by making a law that overrides the regulation but, unless that law already exists, the Judicial Branch has no say. If a presidents regulation does break a law then Congress would sue him in court. Congress has not added transgenders to civil rights laws nor have they passed a law saying they must be allowed in the military. They have not even given transgenders any legal standing as a protected class of people. Therefore, Trump's regulation isn't breaking any law because no such law exists. The order is within the laws.

This is cut and paste from the Library of Congress: he Constitution of the United States divides the war powers of the federal government between the Executive and Legislative branches: the President is the Commander in Chief of the armed forces (Article II, section 2), while Congress has the power to make declarations of war, and to raise and support the armed forces (Article I, section 8). Over time, questions arose as to the extent of the President's authority to deploy U.S. armed forces into hostile situations abroad without a declaration of war or some other form of Congressional approval. Congress passed the War Powers Resolution in the aftermath of the Vietnam War to address these concerns and provide a set of procedures for both the President and Congress to follow in situations where the introduction of U.S. forces abroad could lead to their involvement in armed conflict.

Conceptually, the War Powers Resolution can be broken down into several distinct parts. The first part states the policy behind the law, namely to "insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities," and that the President's powers as Commander in Chief are exercised only pursuant to a declaration of war, specific statutory authorization from Congress, or a national emergency created by an attack upon the United States (50 USC Sec. 1541). https://www.loc.gov/law/help/war-powers.php

These are from the Heritage Guide to the Constitution: Only then was a motion made from the floor to copy the language from the Articles of Confederation into the new Constitution, making explicit the grant of plenary power to Congress. It passed without controversy. By placing the power in Congress, the Framers helped to define the respective roles of the legislature, the executive, and the judiciary over the Armed Forces and thus lessened the chances for serious conflict. Story explains: "The whole power is far more safe in the hands of congress, than of the executive; since otherwise the most summary and severe punishments might be inflicted at the mere will of the executive." The central purpose of the clause is the establishment of a system of military law and justice outside of the ordinary jurisdiction of the civil courts. Tradition and experience taught the Framers that the necessities of military discipline require a system of jurisprudence separate from civilian society

Outside of these categories, federal courts consider a number of factors to determine if the act of the accused member of the military was service connected. O'Callahan v. Parker (1969). Among others, the factors considered include (1) whether the victim of the crime was a member of the military, (2) whether the accused was properly off base when the crime occurred, (3) whether military property was involved, and (4) whether the act by the accused was within his military duties. When reviewing the jurisdiction of a military court, the federal courts utilized these and similar factors on a case-by-case basis. However, in Solorio v. United States (1987), the Supreme Court reversed O'Callahan and found that the military status of the defendant was sufficient by itself to establish the jurisdiction over the person irrespective of whether the offense was service connected. Subsequent to Solorio, military courts obtained more jurisdiction over cases that had been previously tried by the civilian courts. Judicial deference toward military exigencies goes beyond respect for the different rules, procedures, and liabilities in the UCMJ. Deference also includes allowances for military orders and regulations that would hardly be constitutional in a civilian context. http://www.heritage.org/constitution/#!/articles/1/essays/54/military-regulations

Anonymous

crickets? I guess I won that round. I was hoping someone would give me an intelligent and informed answer as to how the Pentagon could follow the ruling without forcing soldiers to violate Article 92. I've thrown the subject out to the media but they are practically useless nowadays when it comes to researching and asking in depth questions.

Buddy

There are people who claim to be animals ("otherkins"). They wear animal costumes, tattoo their bodies, undergo surgeries and surgical implants to look like animals, and even claim they are animals that are trapped in human bodies. Yet, their DNA (and reality) tells a different story. Are they real animals, or are they human beings who THINK they are animals?

Kristin B.

Your analogy isn't analogous at all to transgender people, and that's because you don't understand human development, and how sexual differentiation works in the womb. For instance males are modified females. They were modified by the androgens (testosterones) that the SRY gene on the Y chromosome triggers. Do you know what happens to an XY fetus when the androgens can't, or are stopped from working? It develops down the pathway that is default for human beings, which is female.

Males have nipples because the fetus was developing as female at the time. All fetus start out with the all the cells necessary to form into a fully functioning female. In fact, one of the purposes of androgens being released is so that the tissue that would develop into the female reproductive tract like the uterus, fallopian tubes, etc, is destroyed, and what would form into ovaries forms into testes instead. The testes then release more androgens to masculinize the genitalia, which all forms from the same cells. The head of the penis aka the glans same thing as the clitoris. Same thing with the scrotum, and labia. After the body is formed it releases another flood of androgens in an XY fetus that masculinizes the brain. What do you think would happen to an XY fetus if the androgens were prevented from, or weren't potent enough to masculinize the brain of this fetus who has a male body? Likewise what do you think happens if androgens are present in too high an amount that it masculinizes the brain of a XX fetus that has a female body?

My point is that there isn't this huge difference between a human XY male, and a human XX female, and that is why we see so many different forms of intersexuality in human beings. The evidence is showing transgenderism to be another form of intersexuality that only affects the brain, which is entirely possible given how a human being develops. And that is exactly why it's not analogous to being an "otherkin". Otherkin are people who have a strong affinity for an animal, or mystical animal, etc, that they really identify with, and sometimes want to look like, and mimic, which me personally I have nothing against, and don't even really think it that strange. However, it's not possible for them to be born with a brain that has developed in a way that is causing them to think, and feel like a wolf, cat, dragon, etc. But that is not the case with a transgender person, and the idea that what motivates a transgender person to transition is the fact that they have an intersex born. That's what makes it different from being an "otherkin", and why the argument is not analogous at all.

Anonymous

Exactky what part of a person's brain makes them male or female? If science can't answer that question then there is no scientific basis to your assertion that someone can have a male or female brain. Science isn't wishy~washy. Science only deals with measurable data and strong correlations. Its not scientific to make assumptions that aren't backed by measurable data.

Anyway. I was just checking back in to see if some aclu lawyer might explain what's going on with the recruitments and court actions. I gave you guys the relevant parts of the ucmj and you can google it. They put it on line. I was hoping some lawyer would look it up and be able to give more insight into how everything is playing out.

Buddy

A male-to-female transgender is convinced he is a female trapped in a male's body. To complete the transition of "becoming a woman," he undergoes years of hormone treatments, breast enhancement, psychological counseling, and painful, dangerous surgeries to transition into a "woman".

In a similar situation, a woman who suffers from anorexia looks in a mirror and THINKS she is morbidly obese--despite the fact that her body is dangerously thin from starvation.

In both situations, THOUGHTS play a major role in how they viewed themselves. In reality, the man is a man, and the woman isn't obese. They both suffer from a denial of reality.

You won't hear about it, but there are transgenders and transsexuals who have sought help and returned to their birth-gender. Many credit the love and forgiveness of Jesus Christ for the change. "Trust in the LORD with all your heart and lean not to your own understanding." Proverbs 3:5

Kristin B.

Yup, it's obvious that you don't understand how transgenderism works, nor how transition works. You are also ignorant about the science, and research that's been done that supports transgenderism. Also anorexia is not analogous to transgenderism. For one anorexia is a psychological disorder that responds to treatment, but transgenderism does not. Also anorexia doesn't end well, and isn't healthy for the person. That is not the case with transgenderism as we can look around and see plenty of happy, healthy, and well adjusted transgender people. We would see even more if society didn't treat transgender people with so hostility, negativity, and discrimination.

However, on the reverse we see no happy, healthy, and well adjusted people who are dealing with an eating disorder. Then there is also the fact that the way to actual treat a person who is born transgender is with gender affirming care, and that is because treating it like a psychological disorder failed, and didn't just fail miserably it actually caused real damage, and scars to people both physical, and mental. By the way yeah sometimes a person who is transgender detransitions for a multitude of reasons chief of which usually isn't that they were wrong. Then there are times where sometimes mistakes are made, but usually it is necessary for a lot of people to go through experience of socially, and or medically transitioning, in order, to really find themselves, and to be happy. It's no secret that transgender people detransition like you are claiming. You suffer from denial of science, and reality as the Bible itself has been found to contain historical inaccuracies, contradictions, and mistakes (because sometimes it's just not possible to translate perfectly between languages. Especially when those languages are thousands of years old, and dead). Though you don't see transgender people, and the rest of society who aren't Christians calling Christians crazy for believing in a sky God that they can't see, talk to, have no proof even exist, and then claim that a book is divine and is perfect when in reality it is not.

Religious people can easily also be said to be crazy, delusional, and have a mental disorder because they "think" there is a supreme divine being who created everything, knows everything, and is always right by virtue of being perfect even though this being is invisible, and there is no proof to back up their claims. In fact, there is way more evidence to back transgender people's claims, than there is for religions, and their claims.

devansi

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