Unmuting Immutability: How Strict Scrutiny for Transgender People is Changing the Game

On April 13th, Judge Marsha J. Pechman, a U.S. District Judge in the Western District of Washington, released the opinion in the latest saga of the Transgender military ban[1]. In keeping with the reasoning used by other judges who have ruled on this topic, she kept a previously ordered injunction in place, saying that the President’s “new” guidance on the subject was effectively the same as the old ban from 2017, and therefore was still under the effects of the prior injunction.[2]

However, Judge Pechman took her analysis a step further. In a previous opinion, the Court had stated that transgender people are “at minimum, a quasi-suspect class”.[3]  But this time around, the court concluded that transgender people are a suspect class, and therefore warrant strict scrutiny.[4] The Court takes all of the factors for a suspect class in turn, stating that transgender people meet all of the requirements[5].  This was an enormous move in the fight for LGBT equality, as courts historically have sidestepped the issue of deciding the appropriate level of scrutiny.

The most controversial of the elements required to be considered a suspect class is the argument of immutability. For the courts to consider a trait immutable, it must be “determined solely by the accident of birth and is not capable of or susceptible to change.[6] While the medical community has argued that being transgender is not something that can be changed[7], the courts have not taken a stance on the issue until Judge Pechman’s opinion. By determining that being transgender is immutable, and therefore subject to strict scrutiny, this could have far reaching effects into equal protection litigation for the transgender community.

This could reach into asylum law, particularly. While asylum in the US can be grated to those of a “particular social group”[8], there are no explicit protections for those that are being persecuted based on their sexual orientation or gender identity. The Immigration and Nationality Act does not define what a the requirement of “membership or a particular social group” means necessarily, however, case law has determined that it means a group of people, “all of whom share a common, immutable characteristic.”[9]

This definition on its own has not been enough to include transgender people seeking asylum in the past. But with the new decision, a federal court is now saying that being transgender is an immutable characteristic, one that deserves a higher level of scrutiny. This could have a ripple effect on transgender asylum seekers, and make the United States a safer harbor for those being persecuted because of their gender identity.

About the Author: Kylee Reynolds is a recent graduate from Penn State Law.


 

[1] Karnoski v. Trump, No. C17-1297-MJP, 2018 WL 1784464 (W.D. Wash. Apr. 13, 2018)

[2] Id. at 11

[3] Id. at 20

[4] Id.

[5]The Four factors are:

“(1) whether the class has been “[a]s a historical matter . . . subjected to discrimination,” Bowen v. Gilliard, 483 U.S. 587, 602 (1987)

(2) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440-41 (1985)

(3) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define [it] as a discrete group,” Bowen, 483 U.S. at 602

(4) whether the class is “a minority or politically powerless.” Id.; see also Windsor v. U.S., 699 F.3d 169, 181 (2d Cir. 2012), aff’d on other grounds, 570 U.S. 744 (2013)”

[6] Frontiero v. Richardson, 411 U.S. 677, 686 (1973).

[7] American Psychiatric Association, What Does Transgender Mean?  (2018) http://www.apa.org/topics/lgbt/transgender.aspx

[8] INA § 101(a)(42)(A)

[9] Matter of Acosta, A-24159781 (March 1, 1985)

 

The Fight for the Right to Be Let Alone: A New Frontier in Intersex Rights

 

“The makers of the Constitution conferred the most comprehensive of rights and the right most valued by all civilized men- the right to be let alone.”

  • Justice Louis D. Brandeis

 

Intersex rights are the new frontier of LGBT law. In an ever-progressing field of law, advocacy groups are always looking for the next civil rights violation to tackle. Making its way into the spotlight are issues involving the intersex community. An intersex person is someone whose sex characteristics don’t fall along the binary, that is, either presenting completely male or completely female.[1] Intersex is an all-encompassing term for all conditions that fall under this umbrella. Sometimes the characteristics are purely hormonal or internal, and the person doesn’t know they are intersex until later in life, and sometimes the condition is clear from the ambiguous genitalia.[2] Intersex advocacy has most often centered on the latter.

Generally, advocacy has been focused on raising awareness about the human rights issues involved in intersex surgeries, particularly for infants. When an intersex infant is born with ambiguous genitalia, the parents and the doctor have to make a decision regarding the care for the child. The parents must choose whether or not to have gender-affirming surgery on their infant, during which the doctor would remove the other genitalia. Most often, this means removing penile tissue from what would be the clitoris on a female, and making sure the vaginal opening is functional. However, when making the decision of which gender they are affirming, surgeons generally rely on what the simplest procedure would be. This, more often than not, is removing male organs in lieu of female ones, since this is a more simple procedure surgically. However, no genetic testing is usually done. This means that the decision of which gender to raise the child doesn’t rely on hormone levels, clinical research or any reliable data to ensure that the chosen gender is likely to be the one that the child identifies as.[3] The consequences, therefore, are a higher number of these children experience Gender Dysphoria.[4] While only 1% of the general population experiences Gender Dysphoria, up to 10% of these children will experience it.

This clinical model of remedying the ambiguous genitalia before the child has any memory of it is still based in large part on the failed experiment of John Money, a clinical psychiatrist focusing on a nature versus nurture theory for gender identity.[5] Dr. Money was a sexologist, and his most famous experiment involved a pair of twins who were both born genetically male. After a circumcision accident burnt the entire penis off one of the twins, their parents brought them to Money. Based on his work with hermaphrodites,[6] Money had a theory that up to the age of two, the parents could choose what gender to raise their child as, and how they were raised would determine their gender rather than their physical characteristics. He called this the “gender gate” and thought that these twins presented a perfect opportunity to test his theory on a non-intersex person.[7]

He began publishing about his success in the case when the twins were five, and it was instantly heralded as a medical breakthrough. However, Brenda (the twin that was being raised as a girl) was an intensely unhappy child. She presented very masculine and liked things that were traditionally liked by boys, such as sports and hated feminine things, like dresses or dolls. She also hated going to see Money, whose therapy continued to focus on “teaching” Brenda how to be a woman. This involved showing her naked pictures of herself and her brother to show the differences in anatomy, showing her childbirth videos so she knew what her intention was to be in later life as a woman, and encouraging her to get a vaginoplasty (where they would construct a more anatomically correct vaginal opening). Despite this intensive therapy, Brenda never identified as female and became suicidal. When she was thirteen, her parents relented and told her that she was born male, and had been named David. Immediately, Brenda began living as David, and received a settlement from the doctor who botched his circumcision, which he used to for reconstructive genitoplasty to create a new penis. However, he never fully recovered mentally, and ended up committing suicide at the age of 38.[8] His brother, Brian, angry about all the attention David had received growing up, turned to drugs and died of a drug overdose.[9]

Despite the absolutely catastrophic results of this experiment, Money’s theory is still the basis for intersex surgeries today. Doctors feel that if a child is born with intersex characteristics, it is better to operate when they are infants and raise them as the gender that was chosen for them, usually female.  However, these children have to undergo multiple surgeries over the course of their lives, which usually involves a clitoridectomy.[10] This much trauma to any area grows scar tissue, which lessens sensitivity. Because the clitoris is a vital component to sexual pleasure for a woman, this lessened sensitivity leads to sexual dysfunction in a majority of the people who undergo these surgeries. Several studies conducted support this conclusion.[11]In a leading study of women that had undergone these surgeries, all of them that were sexually active had sexual difficulties.[12] 40% of the sexually active women had never achieved an orgasm.[13]

These results indicate that these surgeries should not be standard procedure for infants that present with intersex conditions. However, no firm guidelines for the treatment of intersex conditions existed until recently. The guidance from professional organizations that is used by doctors to guide medical choices (and is used by lawyers for the medical standards needed in medical malpractice cases) were neutral on the topic of when to operate on these children. The Endocrine Society says that while surgery can correct ambiguous genitalia, parents may choose to delay surgery until the child is old enough to help make the decision, but offers no guidance as to if surgery is ever appropriate in infancy.[14] The CARES Foundation, a non-profit that advocates for people with Congenital Adrenal Hyperplasia (one of the most common intersex conditions that presents with ambiguous genitalia) recommends that surgery be postponed until the child is in adolescence (unless there is a medical necessity) so they can be involved in the decision-making and so that the parents are making informed decisions.[15] An organization specializing in rare diseases agrees that unless there is medical necessity, surgery should be postponed until the child is old enough to have a say in their surgery.[16]

The United Nations Committee Against Torture issued a special report in 2013 denouncing these surgeries, saying that abuse in health care settings should be stopped, and that the surgeries performed on intersex children is done without their informed consent, and is therefore tantamount to genital mutilation.[17] While the United States has not taken proactive steps to curtail these surgeries, other countries have. Germany, Switzerland, Australia, Chile and Malta are among some countries that have outlawed these surgeries on children without their consent. InterACT, the United State’s first legal advocacy group focusing on the issues faced by these children has advocated tirelessly since their founding for a policy change in the treatment of intersex infants, citing issues of informed consent and medical ethics as a reason for the change. They partnered with the Palm Center and produced a guidance letter written by three former U.S. Surgeons General, urging the United States to stop this procedure because there is no data proving that growing up with abnormal genitalia has any negative psychological effects on children. [18] Under the Obama administration, on October 26, National Intersex Awareness Day, the Department of State released a statement recognizing the detrimental effects of these surgeries, and affirming a general commitment to supporting bodily autonomy for all people, even though they didn’t specifically condemn the use of these surgeries.[19]

Despite the efforts of advocates, the American Medical Association hadn’t heard a resolution regarding the regulation of surgeries on intersex infants until this past November at their general meeting. Previously, when faced with adopting a policy, the Board of Trustees had deferred the passing of a resolution in favor of a more generalized approach, citing other opinions about pediatric care generally regarding decisions about gender and sexual health. These mainly included encouraging doctors to include the child in the decision whenever possible, and to delay any procedures that weren’t medically necessary until the child was old enough to be involved in the decision-making. However, without an express resolution, care providers have no clear standard of care for which to adhere to, which has been the downfall of any litigation that was attempted to stop these surgeries judicially. But this year, compelled by pressure from medical student associations, intersex advocates and LGBT civil rights groups, the AMA adopted a resolution stating:

That our American Medical Association support optimal management of DSD[20] through individualized, multidisciplinary care that: (1) seeks to foster the well-being of the child and the adult he or she will become; (2) respects the rights of the patient to participate in decisions and, except when life-threatening circumstances require emergency intervention, defers medical or surgical intervention until the child is able to participate in decision making; and (3) provides psychosocial support to promote patient and family well-being.[21]

This resolution is a big step forward for intersex advocates fighting to eradicate these surgeries. The American Medical Association sets the basic standards of care that physicians follow. When the standard of care is not met, the standard for a medical malpractice claim is reached. While intersex advocates have used arguments of fraud statutes or female genital mutilation laws as well, medical malpractice has the strongest teeth in bringing an end to these surgeries through litigation. With the new adoption of this standard, the medical community is taking a stance for these children.

The battle for equality is hard fought, and change comes slowly. But with the tireless efforts of advocates, the United States is working on joining the charge to end these surgeries globally, and restore autonomy and dignity to all people, regardless of how they are born.

 

About the Author: Kylee Reynolds is a 3L at Penn State Law.


 

[1] What is Intersex?, Intersex Society of North America (2008) http://www.isna.org/faq/what_is_intersex

[2] Id.

[3] Medically Unnecessary Surgeries on Intersex Children in the U.S., Human Rights Watch (2017) https://www.hrw.org/report/2017/07/25/i-want-be-nature-made-me/medically-unnecessary-surgeries-intersex-children-us

[4] Ranna Parekh, What is Gender Dysphoria?, American Psychiatric Association (February 2016) https://www.psychiatry.org/patients-families/gender-dysphoria/what-is-gender-dysphoria

[5] Dr. Money and the Boy With No Penis, British Broadcasting Company (September 14, 2014) http://www.bbc.co.uk/sn/tvradio/programmes/horizon/dr_money_prog_summary.shtml

[6] This is the former name for people with intersex characteristics

[7] Supra at 5

[8] Elaine Woo, David Reimer, 38: After Botched Surgery, He Was Raised as a Girl in Gender Experiment, Los Angeles Times (May 13, 2004) http://articles.latimes.com/2004/may/13/local/me-reimer13

[9] John Calapinto, Gender Gap, Slate (June 3, 2004) http://www.slate.com/arts/2017/12/looking-back-at-love-actuallys-workplace-harassment.html

[10] The removal of the clitoral tissue

[11] See: Sarah Creighton & Catherine Minto, Managing Intersex, PubMed Central, (2001); Naomi S. Crouch et al., Sexual Function and Genital Sensitivity Following Feminizing Genitoplasty for Congenital Adrenal Hyperplasia, Jour. of Urology (February 2008); Maria New & Alan Parsa, Review: Steroid 21-Hydroxylase Deficiency in Congenital Adrenal Hyperplasia, Jour. of Steroid Biochemistry and Molecular Biology (January 2017)

[12] Catherine Minto et al., The Effect of Clitoral Surgery on Sexual Outcome Individuals Who Have Intersex Conditions with Ambiguous Genitalia: a Cross-Sectional Study, Lancet (April 2003)

[13] Id.

[14] Phyllis W, Speiser et al., Congenital Adrenal Hyperplasia Due to Steroid 21-Hydroxylase Deficiency: An Endocrine Society Clinical Practice Guideline, Jour. Of Clinical Endocrinology and Metabolism (September 1, 2010)

[15] What We Do, CARES Foundation (2012) https://www.caresfoundation.org/what-we-do/

[16] Phyllis W. Speiser et al., Congenital Adrenal Hyperplasia, National Organization for Rare Disorders (2017) https://rarediseases.org/rare-diseases/congenital-adrenal-hyperplasia

[17] G.A. Res. 13/10577 ¶ 76 (Feb 1, 2013).

[18] M. Joycelyn Elders et al., Re-Thinking Genital Surgeries on Intersex Infants, Palm Center (June 2017) http://www.palmcenter.org/wp-content/uploads/2017/06/Re-Thinking-Genital-Surgeries-1.pdf

[19] Press Statement, Department of State, In Recognition of Intersex Awareness Day (October 26, 2016) (on file with department)

[20] “Disorders of Sexual Development” (another term for people with intersex conditions)

[21] Patrice M. Harris, Supporting Autonomy for Patients with Differences of Sex Development (DSD), American Medical Association (2017)

 

Got Your Six? Not In Trump’s America

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the position of JLIA, Penn State Law, School of International Affairs, or Pennsylvania State University.

 

On July 26th, 2017, Donald Trump, acting in his capacity as Commander in Chief of the Armed Forces, announced a new policy in the current fashion for this administration, via Twitter, which would ban transgender people from serving in the military.[1] This new “Trans Ban” is a direct reversal of Obama-era policies.

On June 30th, 2016, the Obama Administration announced that they would no longer discharge a member of the service for being openly transgender.[2] Following this, the Department of Defense announced that they would be accepting openly transgender troops into the service.[3] Within a year, on August 25th, 2017, despite no knowledge on the part of the Joint Chiefs of Staff[4] and vehement opposition from members of both parties[5], Donald Trump signed an Executive Order[6] prohibiting transgender people from joining any branch of the military, and giving the Secretary of Defense, James Mattis, six months to determine how to deal with the openly transgender soldiers currently serving, and leaving their long term fate unknown. These soldiers however, are not fighting this battle alone.

The future of this attempt by the Commander in Chief to use the war powers to discriminate may hang in the balance, however, without those he intended to support him. Civil liberty watchdog groups are not the only ones denouncing the President’s ban.  Republican Senator John McCain has openly criticized the ban since the tweet guidance.[7] Senator McCain, who acts as Chair of the Senate Armed Forces Committee, stated, “Any member of the military who meets the medical and readiness standards should be allowed to serve- including those who are transgender.”[8] Senator McCain has also lent his support to a new bill to be introduced into Congress, which pushes back against the Trans Ban.[9] This new bill, created after failed attempts by senators to stop the Ban by adding an amendment to the fiscal year 2018 Defense Authorization Bill[10], would prohibit the Department of Defense from not allowing current transgender troops to reenlist and also speed up the clock for Secretary Mattis in determining the effects on military readiness that he is required to report by February of 2018.[11] If the Bill passes, Secretary Mattis would have to report the results of his review to Congress by the end of 2017.

Secretary Mattis issued a guidance memo on September 15th, 2017 which stated that the Department of Defense, together with the Joint Chiefs of Staff, are convening a panel to discuss what the guidance will mean for transgender troops already currently enlisted, who relied on the Obama-era guidance in making their decision to serve openly as transgender.[12] In the meantime, Secretary Mattis confirmed that the Obama-era policies on transgender troops still hold, and that transgender soldiers may still continue to serve and receive proper medical care.[13] Secretary Mattis has said that he and the panel will create a plan that will “promote military readiness, lethality and unit cohesion”[14], but has not said if the Department of Defense has any idea what direction they will take regarding the currently enrolled soldiers.

While members of Congress are doing their best to fight for the rights of transgender soldiers currently enlisted, civil liberty groups are fighting for that and for the future of transgender people who desire to enlist. LGBT civil rights groups sued Donald Trump over this policy, some before the guidance even made its way to the Pentagon.[15] Others, like Lambda Legal[16] and the American Civil Liberties Union[17], waited until the Executive Order had been signed to sue. These groups cited Equal Protection and Due Process violations.[18] They cite documents that were prepared at the request of the Department of Defense during the Obama era, when they were considering allowing transgender people to serve openly in the service. This study, conducted by the RAND Corporation studied the effects on military readiness of allowing transgender people to serve openly and the costs of healthcare. They determined that healthcare costs were negligible[19] and looked to international examples to study the effects on military readiness.[20]

The Netherlands led the way in allowing transgender people to openly serve in 1974, and the other countries followed suit, including the United States last year. The study began with listing the eighteen countries that allow openly transgender people into their armed forces[21], and focused on the four most developed and long-term implementations of the policy in the Australian, Canadian, Israeli and United Kingdom armed forces. The study outlined the implementation of the policies and the long-term effects on readiness. They found that in all four countries, there was no report on any readiness or military operational effectiveness.[22] In fact, some leaders reported that the “increase in diversity has led to increases in readiness and performance.”[23] Through this research, the RAND Corporation recommended several best practices for the United States implementation of the policy, including diversity training, informed leadership, providing experts to commanders and promoting an inclusive environment.[24]

With the studies commissioned by the Department of Defense refuting the things that the Commander in Chief has cited as reason why they should not allow transgender service members to enlist, the law is on the side of those fighting for equality. While courts give great deference to the military and to anything that could be seen as a threat to national security, there is no reason to find in the favor of the Trump Administration when it comes to not allowing transgender people to enlist. In the Executive Order from the Trump Administration, the only reason given for the ban is that the Obama Administration did not have “sufficient basis to conclude that terminating the Departments’ longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources.”[25] This could not be further from the truth.

Prior to the Obama Administration’s repeal of the Department of Defense’s policy prohibiting transgender troops, they commissioned studies to assess if a repeal of the policy would affect all the things that Trump cited in his new Executive Order. Studies by the RAND Corporation, discussed supra, and the Palm Center helped assess the implications on readiness and effectiveness, and found that it would have no real impact. The Palm Center then, along with other transgender advocates, helped the Department draft standards to assuage the concerns about the medical needs of transgender troops. Per the newly drafted policy, transgender troops would have to be “stable without clinically significant distress or impairment in social, occupational or other important areas of function for 18 months.” They also must meet all other standards required for their respective positions in the service. Transgender advocates and experts on military readiness have supported all of these provisions.

And with respect to the concern of “taxing military resources”, a recent study by the Palm Center, assessed that it would cost the military $960 million dollars to discharge transgender troops (determining the number by calculating how much it would cost to recruit and train new members for the positions they would leave vacant [$75,000 per member x 12,800 active transgender members]).[26] The RAND Corporation study, discussed supra, assessed the cost of providing medical care to transgender troops to be $2.4-$8.4 million.[27] The cost-benefit analysis does not require an economist to interpret the results. The “taxing” of “military resources” would come with discharging these troops, not providing them with adequate medical care.

Without any data to back up the President’s reasoning for the Executive Order, when challenged in a court of law, he will not meet his standard of review. Generally, in cases regarding military policy, the courts have given extreme deference in upholding the choices of the armed forces and using strict scrutiny as their standard of review. This has lead to some devastating Supreme Court decisions in the past.[28] In order for it to hold under strict scrutiny, the action must have a compelling government interest and be narrowly tailored to achieve that interest. With all available data proving that allowing transgender troops to serve openly has no impact on military readiness and costs a fraction of what it would cost to discharge existing troops, the argument that the interest the government has in excluding them becomes less than compelling. And the half-baked guidance sent to the Pentagon that Secretary Mattis has to interpret for the confused military leaders could hardly be called narrowly tailored. Civil liberty watchdogs are likely to find themselves on the right side of history and easily overturn this ban as a matter of law.

While the current administration had made their disdain for the transgender community clear through the actions taken by the president and his chosen leaders for various administrative agencies, with this Ban, they are facing challenges from within their own party, overwhelming data on the side of the transgender soldiers and compelling histories of foreign militaries showing the success of allowing transgender people to serve openly. With the actions of the devoted Congress members fighting to keep those already enlisted in the service, civil liberty groups fighting for the equality promised to them by their government, and the breadth of studies from which the data is on the side of the soldiers, Trump’s Trans Ban will hopefully soon be a thing of the past.

 

About the Author: Kylee Reynolds is a 3L at Penn State Law. 


 

[1] Donald J. Trump, (@realDonaldTrump), Twitter (July 26, 2017, 5:55am) https://twitter.com/realDonaldTrump/status/890193981585444864

[2] Press Operations, Secretary of Defense Ash Carter Announces Policy for Transgender Service Members, U. S. Department of Defense (June 30, 2016) https://www.defense.gov/News/News-Releases/News-Release-View/Article/821675/secretary-of-defense-ash-carter-announces-policy-for-transgender-service-members/

[3] Transgender Service Member Policy Implementation Fact Sheet, Department of Defense (September 13, 2016) https://www.defense.gov/Portals/1/features/2016/0616_policy/Transgender-Implementation-Fact-Sheet.pdf

[4] Barbara Starr et al., US Joint Chiefs Blindsided by Trump’s Transgender Ban, CNN (July 27, 2017) https://www.defense.gov/Portals/1/features/2016/0616_policy/Transgender-Implementation-Fact-Sheet.pdf

[5] Aaron Mak, Trump’s Transgender Troops Ban is Backfiring Among Congressional Republicans, Slate (July 27, 2017) http://www.slate.com/blogs/the_slatest/2017/07/27/trump_s_transgender_troops_ban_is_backfiring_among_congressional_republicans.html

[6] Donald J. Trump, Military Service For Transgender Individuals, Office of the Press Secretary (August 25, 2017) https://www.whitehouse.gov/the-press-office/2017/08/25/presidential-memorandum-secretary-defense-and-secretary-homeland

[7] Chris Johnson, McCain Co-sponsors New Bill Against Trump’s Trans Military Ban, Washington Blade (September 15, 2017) http://www.washingtonblade.com/2017/09/15/bipartisan-bill-introduced-senate-trumps-trans-military-ban/

[8] Gayle Tzemach Lemmon, On Transgender Ban, Trump, Listen to Your Generals, CNN (September 18, 2017) http://www.cnn.com/2017/09/18/opinions/on-transgender-ban-trump-should-listen-to-his-generals-lemmon/index.html

[9] Zack Ford, McCain Joins New Legislative Effort to Overturn Trump’s Trans Military Ban, Think Progress (September 18, 2017) https://thinkprogress.org/mccain-transgender-military-ban-b15affc6d31d/

[10] Chris Johnson, Senate Blocks Vote on Gillibrand Amendment to Protect Trans Troops, Washington Blade (September 14, 2017) http://www.washingtonblade.com/2017/09/14/gillibrand-amendment-protect-transgender-troops-wont-get-vote/

[11] Jennifer Bendery, John McCain Cosponsors Bill to Block Trump’s Ban on Transgender Troops, The Huffington Post (September 15, 2017) http://www.huffingtonpost.com/entry/john-mccain-transgender-troops-trump_us_59bc31bbe4b086432b072478

[12] W.J. Hennigan, Pentagon to Convene Panel on Implementing Trump’s Ban on Transgender Personnel in the U.S. Military, Los Angeles Times (August 30, 2017) http://www.latimes.com/politics/washington/la-na-essential-washington-updates-pentagon-to-convene-panel-on-1504105334-htmlstory.html

[13] Jeremy B. White, Trump’s Transgender Ban Halted by Defense Secretary General Mattis, Independent (August 30, 2017)  http://www.independent.co.uk/news/world/americas/us-politics/trump-transgender-ban-general-mattis-frozen-defence-secretary-a7919331.html

[14] Richard Lardner & Lolita C. Baldor, Mattis: Transgender Troops Can Continue to Serve, Associated Press (September 16, 2017) http://www.military.com/daily-news/2017/09/16/mattis-transgender-troops-can-continue-to-serve.html

[15] Mark Joseph Stern, Why the First Lawsuit Against Trump’s Trans Ban is so Ingenious, Slate (August 9, 2017) http://www.slate.com/blogs/outward/2017/08/09/nclr_and_glad_file_lawsuit_against_trump_s_transgender_troops_ban.html

[16] Lambda Legal and Outserve-SLDN Sue President Trump to Reverse Transgender Military Service Ban, Lambda Legal (August 28, 2017) https://www.lambdalegal.org/blog/20170828_lambda-legal-outserve-sldn-sue-trump-over-trans-military-ban

[17] ACLU Files Lawsuit Challenging Trump’s Transgender Service Member Ban, American Civil Liberties Union (August 28, 2017) https://www.aclu.org/news/aclu-files-lawsuit-challenging-trumps-transgender-service-member-ban

[18] Karnoski et al. v. Trump, Lambda Legal, Complaint at 23 https://www.lambdalegal.org/sites/default/files/legal-docs/downloads/karnoski_us_20170828_complaint.pdf

[19] The costs of providing healthcare to transgender troops would cost $5.6 million annually, only 22 cents per member per month

[20] Agnes Gereben et al., Accessing the Implications of Allowing Transgender Personnel to Serve Openly, RAND Corporation (June 2016) https://www.rand.org/pubs/research_reports/RR1530.html

[21] Australia, Austria, Belgium, Bolivia, Canada, Czech Republic, Denmark, Estonia, Finland, France, Germany, Israel, Netherlands, New Zealand, Norway, Spain, Sweden, United Kingdom

[22] Gereben at 60

[23] Id.

[24] Gereben at 61

[25] Supra at 6

[26] Aaron Belkin et al., Discharging Transgender Troops Would Cost $960 Million, Palm Center (August 2017) http://www.palmcenter.org/wp-content/uploads/2017/08/cost-of-firing-trans-troops.pdf

[27] Gereben at 12

[28] Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944)