The Trump administration’s policy restricting transgender men and women from serving in the U.S. military returns Monday to a federal appeals court in Washington.
The Justice Department last month asked the Supreme Court to short-circuit the appeals process and to rule on the issue this term.
That administration request came after three lower court judges in cases throughout the country temporarily blocked the restrictions in challenges from civil rights and gay rights organizations. Thousands of transgender troops have continued to serve and enlist.
President Donald Trump announced a sweeping ban on transgender service members in July 2017 in a series of tweets that surprised military leaders and members of Congress. The president cited what he viewed as the “tremendous medical costs and disruption” transgender military service would cause. The administration’s order reverses President Barack Obama’s policy of allowing transgender men and women to serve openly and to receive funding for sex-reassignment surgery.
Attorneys for active-duty service members went to court to block the policy shift that could subject current transgender service members to discharge and deny them certain medical care.
The court rulings were met with another policy revision early this year from Secretary of Defense Jim Mattis, who issued a plan that would bar men and women from the military who identify with a gender different from their biological sex and who are seeking to or already have undergone the medical transition process. The new plan makes some exceptions, for instance, for transgender individuals not diagnosed with the condition known as gender dysphoria.
The dispute at the U.S. Court of Appeals for the D.C. Circuit centers in part on whether Mattis’ revised policy is substantially different from the president’s initial order. The appeal by the government also contends a lower court judge who said she could find no evidence transgender troops would harm the military was wrong to put Mattis’s proposal on hold nationally while the administration continued its legal fight.
The appeal will be heard by the three-judge panel of Thomas Griffith, Robert Wilkins and Stephen Williams.
Government lawyers say in court filings that the new policy is constitutional and “markedly different” than the one Trump initially announced. It was crafted, they say, based on the military’s professional judgment and after extensive review.
In asking to jump directly to the Supreme Court, Solicitor General Noel Francisco said that Mattis “and a panel of senior military leaders and other experts” had determined the Obama-era policy allowing transgender troops to serve openly “posed too great a risk to military effectiveness and lethality.” The Supreme Court has not yet reviewed the government’s request.
Attorneys for the transgender service members say the revised plan still discriminates because it continues to apply different standards to a group of troops because of gender identity, rather than considering an individual’s fitness to serve.
“A purported ‘exception’ permitting transgender persons to serve in their ‘biological sex’ does not make the Mattis Plan any less discriminatory; a requirement to serve in one’s biological sex is a transgender ban,” according to the servicemembers’ legal team from GLBTQ Legal Advocates & Defenders (GLAD) and the National Center for Lesbian Rights.
Top military leaders told Congress in April they had seen no evidence transgender personnel serving openly had presented a problem for unit cohesion or military readiness.
A long list of retired military officers, former national security officials and military historians have filed briefs in support of allowing transgender troops. The former officials reject the government’s argument that the policy arose from the type of military judgment to which courts should defer. Trump did not consult with military leaders before announcing the initial ban on Twitter, and, they say, the subsequent order is no different.
“The military’s role here was only to follow orders, not to reconsider the question of including transgender individuals or otherwise revisit any aspect of the initial presidential judgment,” according to the brief filed by Yale Law School professor Harold Hongju Koh, a former state department official. The military cannot exclude “entire groups from military service based on generalizations and prejudice.”
The government’s explanation that the policy is needed to forge strong bonds and commitments, they say, is the same rationale that was used in the past to block African Americans, women and gay individuals from serving.
The appeal comes after U.S. District Judge Colleen Kollar-Kotelly repeatedly rejected the government’s requests to lift her initial injunction, finding “absolutely no support for the claim that the ongoing service of transgender people would have any negative effect on the military at all.”
In August, the judge acknowledged the plan from Mattis is “more nuanced” but found a similar discriminatory effect.
The Mattis plan “still accomplishes an extremely broad prohibition on military service by transgender individuals that appears to be divorced from any transgender individual’s actual ability to serve,” Kollar-Kotelly wrote.