Limits on transgender troops stand

Federal appeals court sides with Trump administration; other rulings in play

WASHINGTON — A federal appeals court in Washington sided with President Donald Trump’s administration Friday, saying restrictions on transgender men and women serving in the military can stand.

The decision lifted an injunction that had barred the government from limiting their service.

The unsigned order from the U.S. Court of Appeals for the District of Columbia Circuit has no immediate impact on transgender troops because federal judges in three other cases have temporarily prevented the administration from implementing its policy.

The Defense Department is continuing to abide by the other court orders that allow transgender men and women to enlist and serve, the Pentagon said Friday.

Even so, the five-page ruling was a blow to the civil-rights and gay-rights organizations challenging the policy nationwide. In reversing a lower-court ruling, the appeals court wrote, “the District Court made an erroneous finding that the [administration’s policy] was the equivalent of a blanket ban on transgender service.”

The appeals court order came after oral argument last month before Judges Thomas Griffith, Robert Wilkins and Stephen Williams.

The court noted that its order was not a final ruling on the merits of the challenge, but that judges must give deference to military leaders when it comes to policy decisions about standards for service.

Attorney Jennifer Levi, director of GLBTQ Legal Advocates and Defenders’ transgender rights project, said the decision is “based on the absurd idea that forcing transgender people to suppress who they are in order to serve is not a ban. It

ignores the reality of transgender people’s lives, with devastating consequences, and rests on a complete failure to understand who transgender people are.”

Military policy until a few years ago had barred service by transgender individuals. That changed under President Barack Obama’s administration. The military announced in 2016 that transgender individuals already serving in the military would be allowed to serve openly. And the military set July 1, 2017, as the date when transgender individuals would be allowed to enlist.

But the Trump administration delayed the enlistment date, saying the issue needed further study. While that study was ongoing, the president tweeted in late July 2017 that the government would not allow “Transgender individuals to serve in any capacity in the U.S. Military.” He later directed the military to return to its policy before the Obama administration changes.

Groups representing transgender individuals responded by suing the administration in the District of Columbia, Maryland, Washington state and California. The Trump administration lost early

rounds in those cases, with courts issuing nationwide injunctions barring the administration from altering course. As a result, transgender men and women continue to serve openly and have been allowed to enlist in the military since Jan. 1, 2018.

The injunctions were met with another policy revision last year from then-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 birth gender and who are seeking to transition. The new plan makes exceptions, for instance, for about 900 transgender individuals who are already serving openly and for others who would serve in accordance with their birth gender.

Lower-court judges who put the injunctions in place, however, refused to reconsider their rulings, prompting the government’s appeal.

The order Friday said the lower court erred by not giving sufficient weight to the administration’s effort to revise its policy in response to the initial court ruling. The appeals court specifically mentioned the creation of a panel of military and medical experts for input.

“It was clear error to say there was no significant change” on the administration’s part, the appeals court said.

“The government took substantial steps to cure the procedural deficiencies the court identified,” according to the order. “Although the Mattis Plan continues to bar many transgender persons from joining or serving in the military, the record indicates that the plan allows some transgender persons” previously barred to join and serve.

The policy is not a “blanket ban,” the court concluded, because “not all transgender persons seek to transition to their preferred gender or have gender dysphoria.” And military experts convened by Mattis said transgender men and women have served “with distinction under the standards for their biological sex,” according to the ruling.

Shannon Minter, legal director for the National Center for Lesbian Rights, which is representing the plaintiffs, said Mattis’ plan shouldn’t be considered inclusive by allowing transgender Americans to serve in the closet. He said he’s confident that the plaintiffs, including current service members who’ve deployed to Iraq and Afghanistan, will win at trial.

“Part of the challenge we face here is that courts are not familiar with transgender people or transgender issues, so they are on a learning curve,” Minter said in a phone interview. “It’s in some ways similar to the challenges we

faced 20 years ago in advocating for gay people to serve. There are a lot of misconceptions and misunderstandings that have to be addressed.”

Minter said he agreed that transgender people have served well in their biological sex, but he disagreed that those people did so because they wanted to. He said it was more likely that such service members never sought to transition due to a fear of rejection or discrimination.

Pentagon spokesman Jessica Maxwell said Friday that the department would continue to “press our case in the courts.”

“As always, we treat all transgender persons with respect and dignity,” she said in a statement. “It is critical that the Department be permitted to formulate personnel policies that it determines are necessary to ensure the most lethal and combat effective fighting force in the world.”

The administration has separately asked the Supreme Court to intervene to allow the government to have the policy take effect.