Ropes & Gray Attorneys Submit Friend-of-the-Court Brief on Behalf of the Organization of American Historians and 47 Prominent Historians, Challenging Trump Administration Ban on Transgender Individuals’ Service in the Military

Ropes & Gray filed an amicus brief in the U.S. Court of Appeals for the District of Columbia Circuit in Jane Doe 2 et. al. v. Donald J. Trump, on behalf of the Organization of American Historians and 47 distinguished individual historians of the military, national security, and foreign relations who are affiliated with a diverse array of prominent academic institutions across the country. The brief supports the plaintiffs in Doe 2 v. Trump, who are current and prospective military servicemembers who are challenging the Trump administration’s near-total ban on military service by transgender individuals.

Citing historical scholarship, the brief argues that the United States military has a long history of excluding from its ranks entire categories of people, with military authorities justifying this discrimination by referring to concerns over efficiency, effectiveness, unit cohesion, and readiness. It explains that the U.S. military also has a long history of successfully integrating previously excluded categories of people, and that the historical record consistently shows that, after the military has stopped a discriminatory personnel practice, its leaders come to champion the formerly excluded groups and to cite their contributions to enhancing military readiness.

Using historical observations, the brief concludes that allowing transgender Americans to serve in the U.S. military would comport with a historical pattern of inclusion of previously discriminated-against groups. It further argues that military’s history of justifying discrimination by citing concerns over military effectiveness should lead the court to treat skeptically the government’s current request for deference to military leaders’ judgment. The brief finally notes that, less than three years ago, after a period of careful review, the then-Secretary of Defense and other military leaders concluded that increasing opportunities for transgender individuals to serve in the military would not pose an unacceptable threat to military readiness or unit cohesion.

“History shows clearly that the military has, in the past, discriminated against groups of Americans — African Americans, immigrants, women, and gay and lesbian people — and has done so on the basis of specious arguments about these groups’ detriment to military effectiveness and readiness,” said Jennifer Mittelstadt, Professor of History at Rutgers University, who is among the historians filing the amicus.

“In fact, the military over time has come to view service by African Americans, immigrants, women, and gay and lesbian Americans as essential. The Trump administration’s treatment of transgender Americans does not comport with the historical trends in the military and thus poses a threat to historical understanding, as well as military effectiveness,” said Ronit Stahl, Assistant Professor of History at the University of California – Berkeley, who is also among the historians filing the amicus.

“The military has only recently fully recognized the value of gay and lesbian servicemembers, which marked an important turning point in history,” said Douglas Hallward-Driemeier, appellate & Supreme Court partner, Ropes & Gray. “History reaffirms what we already know: transgender individuals make important contributions to our national security and should not be left behind.”

The Ropes & Gray team includes Mr. Hallward-Driemeier and labor & employment partner Douglas Brayley.

The full amicus brief is available here.