The attorneys general said the ban is “unconstitutional” and “harms national security.”
They allege that President Donald Trump’s order violates the Fifth Amendment because it deprives service members who identify as transgender of their livelihood without due process of law.
In their brief, the attorneys general stated the ban would harm the readiness of the National Guard to respond to natural disasters, hinder recruitment efforts, and undermine their state governments’ non-discrimination policies toward LGBT people.
They also allege that a president is limited by federal law from certain actions affecting the composition of a state’s National Guard.
The attorneys general stated that military readiness and national security benefit from the service of people who identify as transgender.
The amici states said their own experience, the distinguished service records of people who identify as transgender who have served and are serving, and the opinions of major medical organizations, such as the American Psychiatric Association and the American Psychological Association, justified their support for the lawsuit.
Trump’s executive order stated that the purpose of the change is to ensure the readiness, effectiveness, and “warrior ethos” that makes the U.S. military “the world’s most lethal and effective fighting force.”
According to the order, the pursuit of those standards cannot be “diluted to accommodate political agendas or other ideologies harmful to unit cohesion.” The expression of a “false gender identity divergent from an individual’s sex cannot satisfy the rigorous standards.”
The order stated that transgender-identifying people’s need for ongoing medical, surgical, and mental health care is also inconsistent with the military’s stated standards and objectives for active-duty readiness.
The executive order also put an end to what it called “invented and identification-based pronoun usage” that inaccurately reflects an individual’s sex.
“Adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life,” it stated.
The order also requires stricter separation between male and female service members in sleeping, changing clothes, and bathing.
The amicus brief cited studies that indicated that, as of 2020, about 8,000 people who identify as transgender were actively serving in the military, and nearly that many were in the National Guard.
A 2014 study cited in the brief estimated that there are roughly 150,000 transgender-identifying veterans, active-duty service members, and members of the National Guard and Reserves.
The plaintiffs in the original lawsuit are six active service members and two people seeking to enlist in the military.
They are asking the U.S. District Court for the District of Columbia for a preliminary injunction to put a hold on a couple of Trump executive orders that reverse a January 2021 executive order signed by President Joe Biden allowing people who identify as transgender to serve.
The lawsuit is backed by a coalition of LGBT organizations that are helping to cover legal expenses.
Oral arguments were scheduled to be heard on Feb. 18, 2025, before Judge Ana Reyes.
The Biden order undid a ban on transgender-identifying individuals from serving in the military implemented by Trump during his first term.
Trump’s first-term order reversed the Obama administration’s policy that officially rescinded a longstanding ban on transgender-identifying people’s serving in the military.
Under the Clinton administration’s “Don’t Ask, Don’t Tell” policy that began in 1994, military officials were prohibited from asking about a service member’s sexual orientation. However, service members who publicly stated their orientation were subject to discharge.
Obama ended “Don’t Ask, Don’t Tell” in 2011.
Since World War II, LGBT people were released from the military under what came to be known as a “Section 8” discharge (Army Regulation 615-360.)
A “Section 8” discharge resulted from a determination that a service member displayed behaviors incompatible with core military expectations or responsibilities. These included being homosexual, lesbian, or bisexual and identifying as transgender.
Specific reasons for discharge included psychiatric disorders, personality disorders, pathological lying, cross-dressing, and anti-social behavior, among others.
The American Psychiatric Association’s Diagnostic and Statistical Manual for 1973 declassified homosexuality as a mental disorder—a decision that proved to be a major catalyst for change.
The Jan. 20 order says in part: “It is the policy of the United States to recognize two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality.
“Basing Federal policy on truth is critical to scientific inquiry, public safety, morale, and trust in government itself.”
The order defined a male as a person belonging, at conception, to the sex that “produces the small reproductive cell.” A female is defined as a person belonging, at conception, to the sex that “produces the large reproductive cell.”
The word “sex” is defined as an individual’s immutable biological classification as either male or female, and the word is not synonymous with and has nothing to do with “gender identity,” the order said.
The order defined the concept of gender identity as “a fully internal and subjective sense of self, disconnected from biological reality.”
Under the terms of the order, federal funds shall not be used to promote gender ideology, it stated.
