Pentagon ban on transgender service members draws skepticism from appeals court
A panel of appeals judges expressed skepticism with elements of the Trump administration's transgender service member ban, peppering a Department of Justice lawyer with questions Tuesday morning about the basis for the ban and justification for blocking anyone with gender dysphoria from service without making individualized determinations.
DOJ attorney Jason Manion attempted to justify the policy by arguing that transgender troops lessen the readiness of the U.S. military and that the policy falls under a "core area of presidential power."
"The military has determined that this policy will increase the readiness and effectiveness of the military and, in fact, that not being able to enact it would be harmful to the military," he argued.
Judge Cornelia Pillard, an Obama appointee, pushed back on the assertion by highlighting that the Pentagon did not provide concrete evidence or research to show that transgender members of the military are less lethal or less ready for combat.
"If the military said people with red hair are just too fragile and vulnerable, we are going to kick them all out of the military and we are going to not allow any of them ever to join -- we have no evidence of that, but we think they're a threat to military preparedness, to unit cohesion, and too costly, and so we're just going to kick them out, is that rational enough under military deference?" she asked.
Manion attempted to argue that gender dysphoria is "marked by severe clinical distress or impaired functioning," but Pillard noted that the military already screens soldiers for depression and suicidal ideation.
Judges Gregory Katsas and Neomi Rao, both Trump appointees who also served in his first administration, also raised concerns that the policy treats soldiers the same based on their sex, rather than allow individualized determinations.
"Should the military be required to take an individualized determination?" Rao asked. "Is the decision not to make individualized determinations some indication that this is treating people the same based on the transgender status?"
Shannon Minter, an attorney for the group of 32 transgender service members and recruits who challenged the policy, urged the court to stop the ban from taking effect, arguing the Trump administration has failed to prove why thousands of transgender soldiers deserve to be declared unfit for service.
"The government have a high burden here, and it has not been able to meet any part of it," Minter said.
The group sued the Trump administration over the policy in January, and at least three different federal judges have since blocked the ban from taking effect.
"The Court's opinion is long, but its premise is simple. In the self-evident truth that 'all people are created equal, all means all. Nothing more. And certainly nothing less," Judge Ana Reyes wrote in a ruling last month blocking the policy.
The Trump administration has asked the U.S. Court of Appeals for the District of Columbia Circuit to overrule Reyes' decision, arguing that gender dysphoria "limits deployability and imposes additional costs on the military" and is "not compatible with military readiness and lethality."
Lawyers with the DOJ have argued that the courts should defer to military leadership about the best way to run the armed services.
"Plaintiffs offer no sound basis for concluding that the line the military has once again drawn falls outside constitutional bounds," DOJ lawyers wrote.
But lawyers representing the transgender service members have pushed back on the Pentagon's claim, arguing the Trump administration has provided no evidence of the harm stemming from the policy.
They argued that allowing the policy to take effect would "trigger an explosive and harmful trip wire, causing reputational, professional, and constitutional harm that can never be fully undone."
