A federal court has blocked President Trump in part from changing the military’s transgender policy as a case against his ban works its way through court.
A judge on the U.S. District Court for the District of Columbia ruled Monday that Trump’s directive changing the transgender policy back to what it was before June 2016 and banning new transgender recruits from enlisting cannot be enforced while the case is being reviewed in court.
However, the judge denied the plaintiff’s motion to block the ban on funds for gender reassignment surgery.
In a 76-page memo accompanying the ruling, Judge Colleen Kollar-Kotelly wrote that the plaintiffs are likely to succeed in their case arguing the transgender ban violates their Fifth Amendment right to due process.
“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,” she wrote.
The plaintiffs in the case, the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates & Defenders (GLAD), celebrated the injunction Monday as a “complete victory.” “This is a complete victory for our plaintiffs and all transgender service members, who are now once again able to serve on equal terms and without the threat of being discharged,” Shannon Minter, NCLR’s legal director, said in a statement. “This court saw straight through the smokescreen the government tried to create to hide the bias and prejudice behind Trump’s change in military policy,” added Jennifer Levi, director of GLAD’s transgender rights project. “This clear, powerful ruling confirms that there is no legitimate reason to exclude transgender people from military service.” Despite the judge’s denial of the injunction on the ban for surgical funding, Minter and Levi told reporters on a conference call that transgender service members will be able to receive all medically necessary care. They clarified that this is because the end of the ruling says the military’s policy will “revert to the status quo” before Trump policy, which includes covering surgery.
In July, Trump that he would ban transgender people from serving in the military in any capacity.
He made good on the tweets in August, signing a presidential memo that prohibits the military from enlisting transgender people and from using funds to pay for gender transition-related surgery. The memo also gave Defense Secretary six months to determine what to do with transgender troops who are currently serving.
NCLR and GLAD sued in August on behalf of six unnamed service members and two recruits.
The government asked for the case to be dismissed, arguing that because Mattis is in the midst of the six-month review and has said no service member will be discharged in the interim, the plaintiffs have not been affected by the policy yet.
But Kollar-Kotelly ruled that while “perhaps compelling in the abstract,” the government’s arguments for dismissal “wither away under scrutiny.”
“The memorandum unequivocally directs the military to prohibit indefinitely the accession of transgender individuals and to authorize their discharge,” she wrote. “This decision has already been made. These directives must be executed by a date certain, and there is no reason to believe that they will not be executed. Plaintiffs have established that they will be injured by these directives, due both to the inherent inequality they impose, and the risk of discharge and denial of accession that they engender.”
But the plaintiffs did not establish that they would by harmed by the ban on funds for gender reassignment surgery, Kollar-Kotelly ruled. Therefore, she said, the court does not have jurisdiction to enjoin the aspect of Trump’s policy.
Still, she wrote, the plaintiffs are likely to succeed in their case against the accession and retention policies because the government’s arguments for the ban “appear to be hypothetical and extremely overbroad.”
“As far as the court is aware at this preliminary stage, all of the reasons proffered by the president for excluding transgender individuals from the military in this case were not merely unsupported, but were actually contradicted by the studies, conclusions and judgment of the military itself,” she added, referring to the military’s 2016 study done during the Obama administration that led to allowing open service by transgender troops.
Kollar-Kotelly also said the court has to consider the circumstances of Trump’s announcement — that is, the fact that it was made abruptly on Twitter.
“The President abruptly announced, via Twitter—without any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes that will gravely affect the lives of many Americans—that all transgender individuals would be precluded from participating in the military in any capacity,” she wrote. “These circumstances provide additional support for plaintiffs’ claim that the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.”
Asked during a press briefing about the court’s decision and whether the administration had a plan to move forward, White House press secretary Sarah Huckabee Sanders said: “Obviously this is something just announced. The Department of Justice has it, they’re reviewing it and I’d refer you to them for any specific questions.”
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