(Bloomberg) -- After President Donald Trump promised to ban transgender Americans from serving in the military, Defense Secretary James Mattis cleaned up the policy to let some serve "in their biological sex." That’s not enough to avoid a constitutional challenge, a U.S. judge said.
Mattis’s February revision is more nuanced than Trump’s original July 2017 tweet, which said transgender men and women would be barred from serving "in any capacity" in the military. But it still targets "proxies of transgender status," such as gender dysphoria and gender transition, U.S. District Judge Colleen Kollar-Kotelly in Washington ruled Monday.
"Tolerating a person with a certain characteristic only on the condition that they renounce that characteristic is the same as not tolerating them at all," Kollar-Kotelly said. She also denied the administration’s request to lift an order blocking the policy while the litigation proceeds.
Current and aspiring transgender service members, including some who’ve been deployed to Iraq and Afghanistan, argue the ban violates their due process rights under the Constitution. They also contend the directive is based on disapproval of transgender people generally, rather than legitimate concerns about military effectiveness or budget constraints.
A Seattle judge came to a similar conclusion in April, keeping an injunction in place. The dispute, impacting an estimated 15,000 transgender service members, may ultimately be decided by the U.S. Supreme Court.
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