Two weeks ago, several anonymous White House officials told Slate and Think Progress that hate group activists were behind the transgender military ban.
Now LGBT organizations are asking a court to force them to turn over their communications in the legal challenge to the ban.
A motion filed in NCLR’s and GLAD’s challenge to Donald Trump’s transgender military ban is asking U.S. District Judge Colleen Kollar-Kotelly in D.C. to compel the Family Research Council (FRC) and the Heritage Foundation to hand over any communications with the White House about the transgender military ban.
The lawsuit argues that the transgender military ban violates the Fifth Amendment’s equal protection guarantee because it discriminates against transgender people. Judge Kollar-Kotelly – as well as a few other federal judges – already found that the ban is a form of discrimination based on sex.
While the government is legally allowed to discriminate based on sex, it can only do so if there’s an “exceedingly persuasive justification.” That’s why the LGBT organizations want emails and other communications between hate groups and the White House: while the Trump Administration has said that the transgender military ban is about military performance, they’re probably lying.
And if the real reason Donald Trump wants to ban trans people from the military is just because he doesn’t like trans people, then that’s not an “exceedingly persuasive reason,” and the court can rule that this form of sex discrimination is illegal.
Trump announced the ban in a few tweets last July without any record of hearings, expert testimony, or social science research to show that he had an “exceedingly persuasive justification” for wanting to ban trans people from the military.
Then, just two weeks ago, a report filled with junk science and cherry-picked studies was released with a Department of Defense seal on it. Trump Administration insiders told several publications that the report was actually written by a small committee that included Mike Pence, Ryan Anderson of Heritage, and Tony Perkins of FRC, not the Department of Defense.
FRC is an SPLC designated hate group, Heritage is a far-right think tank, and Pence has a long history of anti-LGBT hatred. It’s unlikely that they looked at the science first and came to the well-researched conclusion that transgender people shouldn’t serve in the military. It’s more likely that they just don’t like transgender people and made up scientifesque reasons as a fig leaf to cover their hatred.
Paul Wolfson, a lawyer on the LGBT side, said, “The purpose of the executive in adopting the transgender ban is squarely at issue in this case, and communications between the executive and advocacy groups like FRC and Heritage about that ban are likely to illuminate its purpose.”
Of course, FRC and Heritage don’t want to turn over the communications to the court. They have already refused to produce any documents in response to the LGBT groups’ subpoenas, and now they’re saying that they don’t want to be “oppressed.”
“This compelled disclosure will adversely affect the ability of Heritage and its supporters to collectively advocate for policies by inducing Heritage and its supporters to withdraw support or cease petitioning the government for fear that exposure of their beliefs and communications will lead to threats, harassment and reprisal,” wrote Heidi Abegg, a lawyer for Heritage.
Effectively, they’re saying that their ideas are so unpopular that even stating them publicly will violate their First Amendment right to petition the government. And they’re saying this as a reason to deny transgender people their right to petition their government.
An attempt to get the records from the White House also failed. The Trump Administration said that it is “constitutionally immune from civil discovery requests.”
On October 30, 2017, Judge Kollar-Kotelly issued an injunction on Trump’s transgender military ban. She ruled that the LGBT organizations were likely to win the lawsuit, so the ban could not be implemented in the time it takes to reach a ruling.