Trump Administration Wins Ruling in Transgender-Ban Lawsuit
(Bloomberg) -- A federal appeals court handed U.S. President Donald Trump his first victory in an effort to ban many transgender Americans from serving in the military, lifting a court’s injunction against the new policy.
The February 2018 plan crafted by former defense secretary Jim Mattis, at the president’s request, appears less restrictive than the blanket ban initially promised by Trump because it allows transgender people to serve if they do so "in their biological sex," a panel of three judges in Washington ruled Friday.
The ban still can’t be immediately implemented, however, because injunctions from several other courts remain in place. In November, the Trump administration asked the Supreme Court to conduct an expedited review of the cases and to preempt rulings by appeals courts.
The Washington appellate panel said it relied on military reports that found "not all transgender persons seek to transition to their preferred gender" or have a condition known as gender dysphoria. And military experts convened by Mattis said transgender men and women have served "with distinction under the standards for their biological sex," according to the ruling.
"Thus, the district court erred in finding that the Mattis plan was a blanket transgender ban," the judges said.
Heading to Trial
Shannon Minter, legal director for the National Center for Lesbian Rights, which is representing the plaintiffs, said Mattis’s plan shouldn’t be considered inclusive by allowing transgender Americans to serve in the closet. He said he’s confident that the plaintiffs, including current service members who’ve deployed to Iraq and Afghanistan, will win at trial.
"Part of the challenge we face here is that courts are not familiar with transgender people or transgender issues, so they are on a learning curve," Minter said in a phone interview. "It’s in some ways similar to the challenges we faced 20 years ago in advocating for gay people to serve. There are a lot of misconceptions and misunderstandings that have to be addressed."
Minter said he agreed that transgender people have served well in their biological sex, but he disagreed that those people did so because they wanted to. He said it was more likely that such service members never sought to transition due to a fear of rejection or discrimination.
"We treat all transgender persons with respect and dignity," Defense Department spokeswoman Jessica Maxwell said in a statement. "It is critical that the Department be permitted to formulate personnel policies that it determines are necessary to ensure the most lethal and combat effective fighting force in the world."
Trump promised in a series of tweets in July 2017 to bar transgender Americans from serving in the military “in any capacity,” citing threats to troop readiness and morale, as well as costs associated with transgender medical services. That reversed the policy of former president Barack Obama, who moved to allow transgender soldiers to serve.
A coalition of states had filed a brief in their support of the plaintiffs, accusing Trump of peddling discredited myths to justify an “irrational” return to military discrimination. More than a dozen foreign nations that already accept transgender troops, including Canada, Britain and Israel, report none of the problems cited by the president, the states said.
U.S. District Judge Colleen Kollar-Kotelly in Washington put the temporary injunction in place in October 2017, calling the ban a form of discrimination based on gender and ruling it was already causing harm to personnel.
“There is absolutely no support for the claim that the ongoing service of transgender people would have any negative effect on the military at all,” the judge wrote at the time.
The Trump administration sought to get around the court’s concerns by directing military experts to craft a more thoughtful policy, which Mattis announced early the next year. The revision allowed hundreds of transgender soldiers to keep their jobs and paved the way for more to serve as long as they didn’t seek to transition.
Lower-court judges who put the injunctions in place, however, refused to reconsider their rulings, prompting the government’s appeal.
The case is Doe v. Shanahan, 18-5257, U.S. Court of Appeals for the District of Columbia (Washington).
(An earlier version of this story corrected a reference to the director’s sex.)
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