Appeals court hears sides on transgender military ban

WASHINGTON -- President Donald Trump's administration pressed a federal appeals court Monday to allow the U.S. military to restrict service by transgender men and women, calling it "truly extraordinary" that judges throughout the country have stood in the way of its policy.

Judge Thomas Griffith noted that the way in which Trump announced the initial ban last year on transgender troops in a series of tweets -- and to the surprise of military leaders -- "was extraordinary, too."

The exchange in Washington came during oral argument at the U.S. Court of Appeals for the District of Columbia Circuit and after three lower-court judges temporarily blocked the restrictions in challenges from civil-rights and gay-rights organizations. Thousands of transgender troops have continued to serve and enlist.

There were parallels in the administration's argument Monday to those made in support of the president's ban on travelers to the U.S. from certain Muslim-majority nations. Trump had initially pledged a "total and complete shutdown of Muslims entering the United States."

On the transgender service ban, Trump announced the prohibition via Twitter in July 2017 and cited what he viewed as the "tremendous medical costs and disruption" transgender military service would cause. The administration's order reversed 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 James Mattis, who issued a plan to bar men and women from the military who identify with a gender different from their biological sex and who are seeking to undergo the medical transition process. The new plan makes exceptions, including for about 900 transgender individuals who are already serving openly and for others who would serve in their biological sex.

The Justice Department has tried to short circuit the appeals process by asking the Supreme Court to intervene and rule on the issue this term, but the high court has not yet acted.

The dispute at the D.C. Circuit on Monday centered in part on whether Mattis' revised policy is substantially different from the president's initial order. The appeal by the government contends a lower-court judge was wrong when she said she could find no evidence transgender troops would harm the military and ruled in favor of putting Mattis' proposal on hold nationally while the administration continued its legal fight.

Griffith suggested the government's requirement that transgender troops serve in their biological sex would force a person to suppress their nature and what it means to be transgender.

"Isn't that a contradiction in itself?" Griffith asked. He suggested that "no one can fit into the category you describe."

Justice Department attorney Briton Lucas emphasized that a person's transgender status alone was not disqualifying, and noted that a subset of transgender individuals have no interest in transitioning.

That argument was picked up by Judge Stephen F. Williams, who repeatedly referred to transgender individuals who "do not wish to transition," seeming to make the point that the administration's policy is not a complete ban.

"The record in this case is against you," Williams told the lawyer representing the transgender troops, Jennifer Levi.

Levi disagreed. She told the judge a person's gender identity is "deep-seated" and there are significant reasons, including concerns about discrimination, that would make a person reluctant to transition.

The revised policy still is "rooted in discrimination against an entire group," said Levi, who led the team from GLBTQ Legal Advocates & Defenders and the National Center for Lesbian Rights.

At the D.C. Circuit Monday, the government's lawyer said the new version of the policy restricting transgender military service was crafted based on the military's professional judgment and after extensive review.

Lucas, of the Justice Department, urged the court to defer to the judgment of the military and said the situation was "no different than the travel ban case."

Griffith said the revised version of the travel ban included "many, many differences." The judge added, "You haven't been able to identify so many."

Judge Robert Wilkins also seemed skeptical the recast rule on troops had changed much other than its provision allowing current transgender troops already serving openly to remain.

"Other than the grandfather clause, what's the difference?" he asked.

Attorneys for the transgender service members said 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 Section on 12/11/2018

Upcoming Events