Federal Judge Says Trump Administration Can't Stop Funding Sex-Reassignment Surgeries for Military Members

By Ann E. Marimow, The Washington Post

22 November 17

second federal judge has halted the Trump administration’s proposed transgender military ban, finding that active-duty service members are “already suffering harmful consequences” because of the president’s policy.

The ruling Tuesday by U.S. District Judge Marvin J. Garbis in a Maryland case comes just weeks after another judge in Washington blocked the administration’s proposal that would have stopped military recruitment of transgender men and women and possibly forced the dismissal of current service members, starting in March.

The preliminary injunction issued by the judge in Baltimore on Tuesday goes further than the earlier ruling by also preventing the administration from denying funding for sex-reassignment surgeries after the order takes effect.

In his 53-page order, Garbis said the transgender service members challenging the ban have “demonstrated that they are already suffering harmful consequences such as the cancellation and postponements of surgeries, the stigma of being set apart as inherently unfit, facing the prospect of discharge and inability to commission as an officer, the inability to move forward with long-term medical plans, and the threat to their prospects of obtaining long-term assignments.”

In July, President Trump surprised military leaders and members of Congress when he announced the proposal in a series of tweets. The challenge from six active-duty service members in Maryland was filed days after Trump issued a formal order reversing an Obama-era policy allowing transgender men and women to serve openly and to receive funding for sex-reassignment surgery.

Justice Department lawyers asked the court this month to dismiss the lawsuit because the policy is on hold pending a review by the Defense Department. No decisions have been made, government lawyers said, about whether to discharge active-duty service members solely because they are transgender. The military is continuing to provide transition-related medical care.

Garbis rejected the government’s argument that the challenge was premature.

“The only uncertainties are how, not if, the policy will be implemented and whether, in some future context, the president might be persuaded to change his mind and terminate the policies he is now putting into effect,” Garbis wrote.

In issuing the preliminary injunction, the judge found the challengers likely to prevail in asserting that the president’s order violates equal-protection guarantees in the Constitution as well as the rights of service members to medical care.

The judge agreed with the government that the courts should generally defer to the president and Congress on military affairs, but it found that “Trump’s tweets did not emerge from a policy review,” according to the opinion, which featured images of the president’s July tweets.

“A capricious, arbitrary, and unqualified tweet of new policy does not trump the methodical and systematic review by military stakeholders qualified to understand the ramifications of policy changes,” wrote Garbis, who was nominated to the bench by President George H.W. Bush.

American Civil Liberties Union attorney Joshua Block, who is representing the service members, called the decision a “victory for transgender service members across the country.”

“We’re pleased that the courts have stepped in to ensure that trans service members are treated with the dignity and respect they deserve,” Block said.

Justice Department spokeswoman Lauren Ehrsam said in a statement, “We disagree with the court’s ruling and are currently evaluating the next steps.” The statement added: “None of the plaintiffs have established that they will be impacted by current policies on military service.”

Even though U.S. District Judge Colleen Kollar-Kotelly in Washington had already put the broad outlines of the proposal on hold in late October, her decision did not explicitly rule on whether the administration could stop paying for sex-reassignment surgeries.

Garbis found that the proposed ban would harm plaintiffs in the Maryland case who are trying to schedule transition-related surgical care and will not be able to receive surgery before the policy’s March start date.

Estimates vary widely about the number of transgender military members.

One recent study by the Rand Corp. put the number on active duty at about 2,500, while another from the Williams Institute at the University of California at Los Angeles School of Law estimated that there were 15,500 on active duty, in the National Guard and in the reserves. Eighteen other countries allow transgender troops to serve.