DC Circuit Court Sides With Trump's Transgender Military Ban

By Zack Ford, ThinkProgress

05 January 19

Injunctions upheld by other courts remain in place, however, banning the policy from being implemented.

he Court of Appeals for the D.C. Circuit has issued the first-ever ruling in favor of President Trump’s ban on transgender people serving in the military.

Friday’s decision lifts the national injunction imposed in that case, although injunctions upheld by several other courts across the country remain in place, meaning the ban will not yet take effect.

The D.C. court humored the Trump administration’s claim that its “new” policy banning transgender people — the “Mattis Plan,” issued last March after a rigged study — was somehow different enough from the original policy to not constitute a blanket ban on transgender service.

“We acknowledge that the military has substantial arguments for why the Mattis Plan complies with the equal protection principles of the Fifth Amendment,” the Court explained. “[It] appears to permit some transgender individuals to serve in the military consistent with established military mental health, physical health, and sex-based standards.”

Because the Court believed that the Mattis policy represented the “considered professional judgment” of military officials, it felt it must defer, citing cases in which courts have previously upheld a sex-based draft-registration statute and a ban on servicemembers wearing yarmulkes. “We think that the public interest weighs in favor of dissolving the injunction,” they concluded.

Jennifer Levi, an attorney at GLAD representing the plaintiffs in the case, called Friday’s ruling a “devastating decision” because it “fundamentally ignores who transgender people are.”

The Mattis policy, as the Court admitted, bans people who have either been diagnosed with gender dysphoria or who plan to transition. GLAD argued that this is clearly a ban on all transgender people, because nobody who transitions is allowed to serve. But the Court rebuffed this simple fact, insisting, “We can find nothing in the record to support this definition of being transgender.” They claim that “not all transgender persons seek to transition to their preferred gender or have gender dysphoria.”

Levi said they plan to take on these “misstatements about who transgender people are” as the case proceeds. The decision, she said, relies on the assumption “that requiring people to suppress who they are is not a ban on trans people. That’s absurd and demeaning.”

Several major medical organizations have said as much, rebuking the Mattis policy’s medical justifications for discriminating against transgender people.

“We keep fighting,” Levi promised.

The D.C. case is only one of four different cases challenging the ban nationally, and the injunctions implemented by the other three courts all remain in place. Many of the cases are currently bogged down by disputes over discovery, with the Trump administration refusing to turn over documentation about the process that led to the new policy, as doing so might undermine the validity of the study the D.C. Circuit cited as evidence of “considered military judgment.”

As ThinkProgress previously reported, Vice President Pence reportedly convened his own separate study group of anti-LGBTQ conservatives, whose anti-transgender rhetoric can be found throughout the Mattis policy. A review of all of the documents that have been made available from the military study in late 2017, including interviews with some of the transgender military personnel who testified to the committee, also found nothing to substantiate the medical claims published in the final policy.

Additionally, a memo unearthed in one of the lawsuits revealed former Defense Secretary James Mattis instructed the study committee to figure out how to implement Trump’s desired ban on transgender people serving, rather than take into consideration whether such a ban should be implemented.