Judge blocks Trump’s trans­gen­der troops ban

Northwest Arkansas Democrat-Gazette - - FRONT PAGE - In­for­ma­tion for this ar­ti­cle was con­trib­uted by David Crary and Jes­sica Gresko of The As­so­ci­ated Press; by Justin Jouvenal of The Wash­ing­ton Post; and by Erik Lar­son of Bloomberg News.

WASH­ING­TON — A fed­eral judge on Mon­day tem­po­rar­ily blocked Pres­i­dent Don­ald Trump’s promised ban on trans­gen­der Amer­i­cans serv­ing in the armed forces, rul­ing that an ear­lier pol­icy of in­clu­sion must re­main in ef­fect.

U.S. District Judge Colleen Kol­lar-Kotelly ruled that the trans­gen­der ser­vice mem­bers who had sued over Trump’s pol­icy were likely to win their law­suit. She di­rected a re­turn to the sit­u­a­tion that ex­isted be­fore Trump an­nounced his new pol­icy this sum­mer, say­ing the ad­min­is­tra­tion had pro­vided no solid ev­i­dence for why a ban should be im­ple­mented.

Trump had or­dered a re­in­state­ment of the long-stand­ing pol­icy that barred trans­gen­der in­di­vid­u­als from join­ing the mil­i­tary. Ser­vice mem­bers who were re­vealed to be trans­gen­der were sub­ject to dis­charge. Un­der Pres­i­dent Barack Obama, that pol­icy was changed last year to al­low trans­gen­der peo­ple to serve openly.

The Trump ad­min­is­tra­tion may ap­peal Kol­lar-Kotelly’s de­ci­sion, but the in­junc­tion means Trump’s pol­icy can­not be im­ple­mented while the case is lit­i­gated. No trial date has been set.

Kol­lar-Kotelly al­lowed to stand a part of the pro­posal that would bar fed­eral health funds from be­ing used for sex re­as­sign­ment surgery. The ad­min­is­tra­tion has

sought to pro­hibit such pay­ments; Kol­lar-Kotelly said she didn’t have ju­ris­dic­tion to rule on the is­sue be­cause none of the plain­tiffs in the case es­tab­lished a like­li­hood of be­ing af­fected by that pro­hi­bi­tion.

In her rul­ing, Kol­lar-Kotelly said she was re­quired to ap­ply a greater de­gree of scru­tiny to the gov­ern­ment’s plan be­cause it af­fects a class of Amer­i­cans that has tra­di­tion­ally lacked po­lit­i­cal power.

“As a class, trans­gen­der in­di­vid­u­als have suf­fered, and con­tinue to suf­fer, se­vere per­se­cu­tion and dis­crim­i­na­tion,” the judge wrote. “De­spite this dis­crim­i­na­tion, the court is aware of no ar­gu­ment or ev­i­dence sug­gest­ing that be­ing trans­gen­der in any way lim­its one’s abil­ity to con­trib­ute to so­ci­ety.”

Jus­tice De­part­ment spokesman Lau­ren Ehrsam re­it­er­ated the de­part­ment’s view that the law­suit in ques­tion was pre­ma­ture be­cause the Pen­tagon was still in the process of re­view­ing how the trans­gen­der pol­icy might evolve.

“We dis­agree with the court’s rul­ing and are cur­rently eval­u­at­ing the next steps,” Ehrsam said.

One of the at­tor­neys han­dling the law­suit, Shan­non Min­ter of the Na­tional Cen­ter for Les­bian Rights, said the rul­ing was an enor­mous re­lief to his clients.

“Their lives have been dev­as­tated since Trump first tweeted he was re­in­stat­ing the ban,” Min­ter said. “They are now able to serve on equal terms with ev­ery­one else.”

Trump an­nounced on Twit­ter in July that the gov­ern­ment “will not ac­cept or al­low trans­gen­der in­di­vid­u­als to serve in any ca­pac­ity in the U.S. Mil­i­tary,” say­ing the mil­i­tary “must be fo­cused on de­ci­sive and over­whelm­ing vic­tory and can­not be bur­dened with the tremen­dous med­i­cal costs and dis­rup­tion that trans­gen­der in the mil­i­tary would en­tail.” He fol­lowed with an Au­gust memo giv­ing De­fense Sec­re­tary James Mat­tis six months to come up with a pol­icy on “how to ad­dress” trans­gen­der Amer­i­cans who are cur­rently serv­ing. That pol­icy was to be im­ple­mented by March.

Un­der the Obama ad­min­is­tra­tion, the De­part­ment of De­fense had an­nounced in 2016 that ser­vice mem­bers could not be dis­charged solely based on their gen­der iden­tity. Trans­gen­der in­di­vid­u­als were to be al­lowed to en­list in the mil­i­tary in June 2017, a time­line ini­tially de­layed un­der the Trump ad­min­is­tra­tion to Jan. 1, 2018.

Min­ter said the new court rul­ing means they will be able to en­list as of that date.

The Trump ad­min­is­tra­tion had asked the court to dis­miss the law­suit; Kol­lar-Kotelly re­fused to do so, and Min­ter said it’s pos­si­ble the case will go to trial.

The law­suit was filed in Au­gust on be­half of eight trans­gen­der in­di­vid­u­als, in­clud­ing ser­vice mem­bers in the Air Force, Coast Guard and the Army, as well as stu­dents at the U.S. Naval Academy and in the ROTC pro­gram at the Univer­sity of New Haven.

The Jus­tice De­part­ment, in seek­ing the law­suit’s dis­missal, said none of the plain­tiffs had es­tab­lished that they will be af­fected by cur­rent poli­cies on mil­i­tary ser­vice.

The ad­vo­cacy groups that filed the law­suit as­sailed that as­ser­tion. They high­lighted the un­cer­tainty fac­ing Re­gan Kibby, the trans­gen­der Naval Academy stu­dent who — be­cause of Trump’s ac­tion — was un­sure whether he would be able to join the Navy when he grad­u­ates.

Kol­lar-Kotelly said the plain­tiffs clearly es­tab­lished that they would be harmed by the ad­min­is­tra­tion’s di­rec­tives. She also con­tended that the plain­tiffs were likely to pre­vail in ar­gu­ing that the di­rec­tives were un­con­sti­tu­tion­ally dis­crim­i­na­tory — tar­get­ing trans­gen­der peo­ple with­out ev­i­dence that their ser­vice caused sub­stan­tive prob­lems for the mil­i­tary.

The di­rec­tives “do not ap­pear to be sup­ported by any facts,” the judge wrote.

Other law­suits chal­leng­ing the pres­i­dent’s di­rec­tive have been filed in Seat­tle and Bal­ti­more.

Oral ar­gu­ments are sched­uled Nov. 9 for the Bal­ti­more law­suit, which was filed by the Amer­i­can Civil Lib­er­ties Union on be­half of six trans­gen­der ser­vice mem­bers.

“The fed­eral courts are rec­og­niz­ing what ev­ery­one al­ready knows to be true: Pres­i­dent Trump’s im­pul­sive de­ci­sion to ban on trans­gen­der peo­ple from serv­ing in the mil­i­tary ser­vice was bla­tantly un­con­sti­tu­tional,” said Joshua Block, se­nior staff at­tor­ney with the ACLU.

The Pen­tagon has not re­leased data on the num­ber of trans­gen­der peo­ple cur­rently serv­ing, but a Rand Corp. study has es­ti­mated be­tween 1,320 and 6,630 out of 1.3 mil­lion ac­tive-duty troops.

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