Professor Suzanne Goldberg argues ban relies on sex-based stereotypes that have been rejected by courts for decades.

Cross-Posted from the Columbia Law School Office of Public Affairs

New York, Oct. 29, 2018—The Trump administration’s efforts to ban transgender individuals from serving in the military—which lower courts have so far prohibited from taking effect—are similar to previous bans on service by people of color, women, and gays and lesbians and have no basis in the law, according to an amicus brief filed today in the U.S. Court of Appeals for the D.C. Circuit by Columbia Law School’s Sexuality and Gender Law Clinic in a case challenging the ban.

The brief, filed on behalf of various women’s rights groups, comes just days after reports that the Trump administration is seeking to define gender by a person’s genitalia at birth, with disputes about identity to be settled using genetic testing. The American Psychological Association immediately dismissed that proposal as failing “to recognize decades of scientific research.

“This case comes at a critical time in our nation,” said Columbia Law School Professor Suzanne B. Goldberg, director of the Sexuality and Gender Law Clinic.  “As transgender individuals are under threat from the federal government’s many efforts to deny their existence, it is essential to remember that US courts have – for nearly a half-century – forbidden government from discriminating based on sex, and that this protection should cover transgender individuals who do not conform to gender stereotypes.”The clinic’s brief comes in a case called Jane Doe 2 v. Donald J. Trump, filed on behalf of transgender people serving in the military by the National Center for Lesbian Rights and GLBTQ Legal Advocates & Defenders. U.S. District Judge Colleen Kollar-Kotelly has twice preliminarily enjoined the ban while the case proceeds. In her amicus brief, Goldberg argues a February 2018 memorandum by U.S. Secretary of Defense James N. Mattis to implement Trump’s policy directives relies on “improper assumptions,” “overbroad generalizations,” and “traditional views of men and women.”

In concluding that transgender service members are “incompatible with sex-based standards,” Goldberg writes, Mattis “misses the point that current and aspiring transgender service members do not challenge the application or importance of these standards to military readiness; to the contrary, they seek to serve within these existing standards.”

Goldberg cites numerous cases in which disparate treatment has been rejected by the courts, including Sessions v. Morales-Santana, a case in which the U.S. Supreme Court ruled last year that a citizenship provision of the Immigration and Nationality Act treating mothers and fathers differently violates the Constitution’s Equal Protection clause.  In that case, the Court relied on another amicus brief filed by Professor Goldberg and the Clinic.

“In short, assumptions that men must be one way and women another, even when rooted in traditional views and practices such as those set out in the Mattis Report, are not sufficient grounds for governmental denial of opportunities to men and women who do not conform to those assumptions but are otherwise qualified and prepared to meet all relevant requirements,” Goldberg writes.

In August, Kollar-Kotelly upheld her own previous preliminary injunction in the case in light of Mattis’ plan—which would disqualify anyone who has undergone gender transition and most people with a diagnosis of gender dysphoria. Because the Mattis ban would allow people who identify as transgender to serve “in their biological sex,” the Trump administration argued the plaintiffs no longer have standing to sue. Kollar-Kotelly rejected that argument.

“Mr. Kohere is transgender,” she wrote of one of the plaintiffs, using italics for emphasis. “That means that he does not identify with his biological sex. To serve in his biological sex would be to suppress his identity. To do so would be a harm in and of itself, sufficient to confer standing. The fact that a plaintiff can avoid the effect of a discriminatory policy by renouncing the characteristic that leads to the discrimination in the first place does not mean that the plaintiff lacks standing.”

Goldberg is one of the country’s foremost experts on gender and sexuality law. Before joining Columbia Law School, where she is co-director of the Center for Gender and Sexuality Law, she was a senior staff attorney at Lambda Legal and, in that capacity, served as co-counsel for the defendants in Lawrence v. Texas.

In July, Goldberg and the Sexuality and Gender Law Clinic at Columbia Law School filed an amicus brief in a separate challenge to the transgender military ban proceeding in the Ninth U.S. Circuit Court of Appeals.

Joining Columbia Law School’s Sexuality and Gender Law Clinic on the brief in the Jane Doe 2 case are: California Women Lawyers; The Center for Reproductive Rights; The Connecticut Women’s Education and Legal Fund; Equal Rights Advocates; Legal Voice; National Association of Women Lawyers; The National Organization for Women Foundation; The National Partnership for Women & Families; and The National Women’s Law Center.

Columbia Law clinic students Samantha Briggs’19 and Idun Klakegg’20 assisted on the brief.  Pillsbury Winthrop Shaw Pittman attorneys Cynthia C. Robertson, Robert C.K. Boyd, and William C. Miller also served as counsel on the brief.

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