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Second Federal Court Blocks Trump’s Transgender Military Ban

Lead attorneys in earlier case Talbott v. Trump respond to the now second nationwide preliminary injunction—this time in the case of Shilling v. Trump

In Shilling v. Trump today, U.S. District Court Judge Benjamin Hale Settle issued what will now be a second nationwide preliminary injunction blocking implementation of the transgender military ban resulting from Trump’s January executive order. Earlier this month, U.S. District Court Judge Ana Reyes in Talbott v. Trump issued a first nationwide preliminary injunction blocking the ban. In a forceful order in which Judge Reyes held that the ban undermines national security and is likely unconstitutional she called it “soaked with animus and dripping with pretext.” Earlier tonight in Talbott, the U.S. Court of Appeals for the District of Columbia ruled that the Department of Defense can take no action negatively impacting any servicemember while the court is considering the department’s motion for emergency stay.

Department of Defense implementation of the ban to identify and separate transgender servicemembers was scheduled to begin on March 28, a rapid timeframe former military leaders have characterized as “rushed” and “alarming,” noting that the complexity of the military personnel system requires “months of careful planning and timelines.”

Today’s order in Shilling, along with the injunction previously issued in Talbott by Judge Reyes, prevents the Department of Defense from initiating separation proceedings against any transgender service members or otherwise enforcing the ban.

The lead attorneys in Talbott v. Trump, GLAD Law Senior Director of Transgender and Queer Rights Jennifer Levi and NCLR Legal Director Shannon Minter, respond to today’s issuance of a second preliminary injunction blocking implementation of the ban:

“Given the thousands of brave and decorated transgender servicemembers facing unthinkable harms as the result of this ban, we are heartened but not surprised by today’s decision,” said GLAD Law Senior Director of Transgender and Queer Rights Jennifer Levi. “President Trump’s executive order and Secretary Hegseth’s implementation represent a policy that cannot be constitutionally justified. Thousands of transgender servicemembers currently serving have clearly demonstrated they meet all military standards, with many deployed to critical missions worldwide, proving their capabilities beyond question. These dedicated servicemembers and their families have earned our nation’s gratitude and respect, and the government has a responsibility to honor the commitments it has made to them. This is about keeping faith with Americans who have risked everything to defend our freedoms.

“In both Talbott and Shilling, it was abundantly clear to the court that it must act swiftly to protect our troops from an unconstitutional and indefensible ban that would disrupt the lives and dismantle the careers of thousands of transgender servicemembers and their families. The harms associated with this ban are gut-wrenching,” said NCLR Legal Director Shannon Minter. “In each of these cases, the government did not even attempt to claim that any evidence supported its position. There is no reason to discharge individuals who are serving capably and honorably.”

A nationwide preliminary injunction halts implementation of the ban and protects transgender servicemembers and recruits from its significant harms while the future of the ban is being decided in court. These harms include servicemembers being removed from deployments, denied commissions and promotions, placed on administrative leave, denied medically needed care, and ultimately being placed in involuntary separation proceedings, a process used to address instances of misconduct.

Talbott v. Trump, the first legal challenge filed against President Trump’s recent transgender military ban executive order, is on behalf of 32 plaintiffs and was brought by LGBTQ+ legal groups GLAD Law and NCLR with pro bono legal counsel from Wardenski P.C. and Kropf Moseley PLCC. GLAD Law’s Jennifer Levi and NCLR’s Shannon Minter, the lead attorneys in this case, are transgender themselves and each have more than three decades of experience litigating landmark and key LGBTQ+ cases. Together, Levi and Minter led the legal fight in 2017 against the transgender military ban in Doe v. Trump and Stockman v. Trump, which also secured a nationwide preliminary injunction blocking that ban.

Doe v. Reed

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In June, 2010 the U. S. Supreme Court handed a defeat to anti-gay groups in the State of Washington with an 8-1 decision in Doe v. Reed. Doe addressed the efforts of anti-marriage equality groups to prevent the release of the names of ballot petition signers (R-71), contrary to the terms of the state’s open government laws. GLAD and other gay legal organizations had filed an amicus brief, refuting the claims that those who supported the repeal of Washington’s new “everything-but-marriage” law should have their names protected from disclosure because of fear of systematic intimidation by the LGBT community.

The decision sent the case back to the trial court where marriage equality opponents resumed their legal challenge on the narrower ground that a real probability of harm should prevent disclosure of petitioners’ names. On October 17, 2011, the U.S. Ninth District Court of Appeals denied the plaintiffs’ motion for summary judgment, ruled in favor of equality supporters, and lifted the injunction preventing disclosure of R-71 petition signers, concluding that “The facts before the Court in this case…do not rise to the level of demonstrating that a reasonable probability of threats, harassment, or reprisals exists as to the signers of R-71, now nearly two years after R-71 was submitted to the voters in Washington State.”

Background and GLAD’s involvement:

In a friend-of-the-court brief filed with the U.S. Supreme Court GLAD, Lambda Legal, and the National Center for LGBTQ Rights (NCLR) – together with the Human Rights Campaign and the National Gay and Lesbian Task Force – joined the State of Washington and others in defending open government laws requiring public disclosure of the names of voters who sign petitions supporting state ballot initiatives. In particular, this brief refutes the false claims presented to the Supreme Court in this and other cases that individuals who support anti-gay initiatives have been subjected to “systematic intimidation” by the lesbian, gay, bisexual and transgender (LGBT) community.

In Doe v. Reed, anti-gay groups asked the Supreme Court to overturn a decision of the Ninth Circuit Court of Appeals ordering the release of the names of 138,000 people who signed petitions supporting a ballot initiative to repeal basic protections for same-sex couples in Washington State. In November 2009, Washington voters rejected this attempt – Referendum 71—and preserved the state’s domestic partnership law. Under Washington’s Public Records Act, the signatures on referendum petitions are public in order to prevent fraud and protect the integrity of the lawmaking process. The anti-gay groups sought to strike down Washington’s law, claiming that supporters of anti-gay ballot campaigns would be exposed to harassment and intimidation by the LGBT community if their names were made public.