Trump's New Military Trans Ban Same as Before, Judge Says

(Bloomberg) -- The revised U.S. ban on transgender military service isn’t much different from the original announced by President Donald Trump in 2017 with no apparent input from the Pentagon, a federal judge said, in ruling that a lawsuit over the directive must go to trial.

U.S. District Judge Marsha Pechman in Seattle on Friday decided the two bans are essentially the same, and denied the Justice Department’s request to throw the case out on the grounds that the new ban gives transgender troops and other plaintiffs a way to serve openly.

The judge, nominated by Democratic former President Bill Clinton, also denied a request by transgender plaintiffs for a permanent nationwide injunction against the ban that would have handed them a victory without a trial, meaning the military still has a chance to make its case in court.

Trump announced in July, on Twitter, that transgender Americans would be barred from serving in the military “in any capacity.” That triggered at least four court injunctions, preventing the policy from taking effect while litigation proceeded. A March version of the ban, which Defense Secretary James Mattis said was crafted by military experts, would allow transgender people to serve openly in their “biological sex.”

“Requiring transgender people to serve in their ‘biological sex’ does not constitute ‘open’ service in any meaningful way, and cannot reasonably be considered an ‘exception’ to the ban,” Pechman wrote. “Rather, it would force transgender service members to suppress the very characteristic that defines them as transgender in the first place.”

Reversing Obama

Trump has said that transgender forces impede military readiness and impose a financial burden on taxpayers. His tweet was intended to reverse a policy of inclusion for transgender Americans that the military put in place at the request of former President Barack Obama. The U.K., Canada and Israel are among U.S. allies that allow transgender people to serve.

Pechman said in her ruling that because transgender people have long suffered from discrimination, the government must show that the new policy “was sincerely motivated by compelling interests, rather than by prejudice or stereotype.”

Pentagon spokesman Dave Eastburn referred questions to the Department of Justice, which didn’t immediately respond to requests for comment.

“We look forward to putting the capriciousness and cruelty of this discriminatory ban against transgender people on trial, where it can be relegated for good to the trash heap of history,” Natalie Nardecchia, a lawyer at the LGBT rights advocacy group Lambda Legal, which represents the plaintiffs, said in a statement.

Pechman denied the government’s request to remove Trump as a defendant and said the case must now move to trial on the level of deference the ban deserves, and on the constitutionality of the ban. The judge said the government’s detailed justifications for the ban had only been provided to court just before a recent oral argument and needed to be fully scrutinized.

Her thoughts on the matter were seemingly laid out in the language of Friday’s ruling:

  • “Because transgender people have long been subjected to systemic oppression and forced to live in silence, they are a protected class,” Pechman said. “Therefore, any attempt to exclude them from military service will be looked at with the highest level of care and will be subject to the court’s ‘strict scrutiny.’”
  • “For years, they have risked their lives serving in combat and non-combat roles, fighting terrorism around the world, and working to secure the safety and security of our forces overseas,” Pechman said. “Their exemplary service has been recognized by the military itself, with many having received awards and distinctions.”
  • “The court notes that defendants’ claimed justifications for the ban -- to promote ‘military lethality and readiness’ and avoid ‘disrupt[ing] unit cohesion, or tax[ing] military resources’ -- are strikingly similar to justifications offered in the past to support the military’s exclusion and segregation of African American service members, its ‘Don’t Ask, Don’t Tell’ policy, and its policy preventing women from serving in combat roles,” Pechman said.

The dispute was triggered by a three-part tweet by Trump on July 26, in which the president said he needed to reverse his predecessor’s transgender policy to protect military readiness and reduce waste.

“After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military,” Trump tweeted. “Our military must be focused on the decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you.”

Pechman’s Friday ruling noted that despite numerous requests, the government to date has “failed to identify even one general or military expert he [Trump] consulted, despite having been ordered to do so repeatedly.”

(An earlier version of this story removed an incorrect reference to a permanent injunction.)

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