President Donald Trump and Vice President Mike Pence. Credit: White House

Challengers to the Trump administration's ban on transgender military service have asked a federal district judge to compel the Family Research Council and the Heritage Foundation to produce records about any communications with the administration that relate to the new policy.

“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,” wrote Paul R.Q. Wolfson of Wilmer Cutler Pickering Hale and Dorr, counsel to the challengers in the case Doe v. Trump.

Wolfson continued: “That is especially true in a case like this one, where the need to discover the communications arises precisely because the executive action at issue took place under circumstances that strongly suggest that the explanation given by the executive for its action is untrue.”

In the motion, Wolfson, along with lawyers from Foley Hoag, the National Center for Lesbian Rights and GLBTQ Legal Advocates & Defenders, told U.S. District Judge Colleen Kollar-Kotelly of the District of Columbia that the FRC and Heritage had made a “blanket refusal” to produce any documents in response to their subpoenas.

An attempt to get similar records from the Trump administration also failed, the challengers said. The administration argued the president is constitutionally immune from civil discovery requests and that—at a minimum—the presidential communications privilege covered the records.

Kollar-Kotelly on Monday ordered Family Research Council and Heritage to respond to the motion to compel by April 23, and the plaintiffs to file a reply by April 30.

The subpoenas, issued on Feb. 12, seek “external communications between Jan. 20, 2017, and Sept. 1, 2017″ between FRC and Heritage and the president, vice president, their respective executive offices, and the U.S. Department of Defense “concerning military service by transgender people and/or any restriction of military service by transgender people.”

Family Research Council, represented by Gene Schaerr of Washington's Schaerr Duncan, objected to the subpoena, saying that the council is an “explicitly Christian ministry” and that compliance with the subpoenas would burden its religious exercise rights in violation of the Religious Freedom Restoration Act.

Schaerr also argued that the production request would violate the Family Research Council's First Amendment rights to petition the government, freedom of association and freedom of speech.

Gene Schaerr.

“FRC's communications with the government, if any, have no relation to the subject of the lawsuit, namely, the constitutionality of the president's policy related to transgender individuals serving in the military,” Schaerr wrote. “Any communications FRC may have had with the government would not be relevant to the plaintiffs'' constitutional and other claims in this case, nor are the requests reasonably calculated to lead to the discovery of relevant information.”

Heidi Abegg of Washington's Webster Chamberlain & Bean, counsel to Heritage, also objected to the subpoena, writing that the demand for documents was intended to “harass and oppress” Heritage to “delve into privileged” matters.

The subpoena, Abegg wrote, “impermissibly penalizes and restrains the exercise of Heritage's right to petition the government by requiring it to disclose communications to the government.”

Abegg continued: “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.”

President Donald Trump announced on July 26, 2017, that “the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.” After the announcement, he issued a presidential memorandum on Aug. 25, stating that effective March 23, 2018, the armed forces would no longer “permit transgender individuals to serve openly in the military,” and no longer “authorize the use of the Department [of Defense's] resources to fund sex-reassignment surgical procedures.”

The plaintiffs are transgender individuals currently serving or planning to serve in the military. They contend the ban violates their rights to equal protection of the law. Kollar-Kotelly, finding they were likely to prevail on their claims, on Oct. 30 issued a preliminary injunction blocking the ban.

In issuing the injunction, Kollar-Kotelly considered whether the ban was “motivated by an improper animus or purpose,” and found “support for plaintiffs' claim that the decision to exclude transgender individuals was not driven by genuine concerns.”

“The court finds that a number of factors—including the sheer breadth of the exclusion ordered by the directives, the unusual circumstances surrounding the president's announcement of them, the fact that the reasons given for them do not appear to be supported by any facts, and the recent rejection of those reasons by the military itself—strongly suggest that plaintiffs' Fifth Amendment claim is meritorious,” Kollar-Kotelly wrote.

However, Kollar-Kotelly ruled in favor of the administration in deciding that the plaintiffs did not have grounds to challenge the ban on military-funded gender reassignment surgeries.

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