Judge blocks Trump from enforcing transgender military ban

By : Chris Johnson of the Washington Blade, courtesy of the National LGBT Media Association
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A federal judge in D.C. has blocked President Trump’s ban on transgender military service as litigation against it moves through the judiciary, allowing transgender troops currently serving in the armed forces to breath a sigh of relief.

In a 76-page decision, U.S. District Judge Colleen Kollar-Kotelly, a Clinton appointee, restores the military policy on transgender troops before Trump’s directive under the likely assumption his action violates the right to due process under the Fifth Amendment.

“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 writes.

The lawsuit was filed against Trump’s transgender military ban after he announced it on Twitter, but before he issued his directive, by the National Center for Lesbian Rights and GLBTQ Advocates & Defenders on behalf of current and aspiring transgender service members.

Shannon Minter, legal director for the National Center for Lesbian Rights, said in a statement the ruling is “a complete victory” for transgender service members “who are now once again able to serve on equal terms and without the threat of being discharged.”

“We are grateful to the court for recognizing the gravity of these issues and putting a stop to this dangerous policy, which has wreaked havoc in the lives of transgender service members and their families,” Minter added.

The preliminary injunction restores the military’s policy on transgender troops to the policy as set out in the memo Defense Secretary James Mattis issued June 30. That memo allowed openly transgender people in the military to continue to serve without fear of discharge, but continued until at least Jan. 1 a ban on enlistments of openly transgender people in the armed forces pending a new review.

Trump overturned the Mattis memo shortly afterward, first announcing via Twitter in July he’d ban transgender people form the armed forces “in any capacity,” then issuing a memo to the Pentagon in August to implement a ban on transgender military service.

The Justice Department had argued the lawsuit against the ban was “premature” because the policy wasn’t yet fully implemented and that plaintiffs lacked standing in the case, but Kollar-Kotelly rejects those arguments on the basis they “wither away under scrutiny.”

“The memorandum unequivocally directs the military to prohibit indefinitely the accession of

transgender individuals and to authorize their discharge,” Kollar-Kotelly writes. “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.”

Jennifer Levi, director of GLAD’s Transgender Rights Project, said in a statement the judge “saw straight through the smokescreen” of arguments the Justice Department presented in the case.

“This clear, powerful ruling confirms that there is no legitimate reason to exclude transgender people from military service,” Levi said. “Fighting discrimination isn’t easy, and to all the transgender members of the armed forces or those looking to join, I want to say thank you for your courage, not only in fighting for our country, but in fighting for the constitutional values of equality and justice.”

Kollar-Kotelly cites as evidence the transgender ban was driven by animus and not military effectiveness Trump’s decision to announce it unexpectedly in July.

“[T]he 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,” the order says. “These circumstances provide additional support for plaintiffs’ claim that the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.”

Trump’s directive reversed a policy enacted under Defense Secretary Ashton Carter during the Obama administration undoing anti-trans medical regulations established in the 1980s, which led to openly transgender people being able to come out in the armed forces without fear of discharge.

Although the decision largely is in favor of plaintiffs, the decision rejects the request to block enforcement of the portion of the transgender military ban denying U.S. military payment for gender reassignment surgery.

“Although the court concludes that plaintiffs have standing to challenge the accession and retention directives, none of the plaintiffs have demonstrated an injury in fact with respect to the sex reassignment surgery directive,” the order says. “First, only some plaintiffs are implicated by the provision at all. For those that are, the risk of being impacted by the sex reassignment surgery directive is not sufficiently great to confer standing.”

The judge also rejects plaintiffs challenge to the transgender military ban on the basis it violates estoppel, the principle that precludes a person from asserting something contrary to a previous action or statement — in this case the Obama administration’s decision to lift the transgender military ban.

White House Press Secretary Sarah Huckabee Sanders deferred to the Justice Department when asked by Fox 5 DC about the judge’s order during the White House news briefing Monday.

“Obviously, this is something that was just announced,” Sanders said. “The Department of Justice has it, they’re reviewing it and I’d refer to them for any specific questions.”

A Justice Department spokesperson declined to comment on the order. The department has the option of appealing the order and seeking a stay before the U.S. Court of Appeals for the Federal Circuit.

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