November 21, 2017 at 3:31 pm EST | by Chris Johnson
Court deals second blow to Trump’s transgender military ban

A federal judge has blocked enforcement of President Trump’s transgender military ban. (Photo public domain)

A federal judge in Maryland has issued a ruling against President Trump’s ban on transgender people serving in the U.S. military, the second court decision against the policy.

In a 53-page decision, U.S. District Judge Marvin Garbis, an appointee of George H.W. Bush, determined a preliminary injunction against the ban is warranted because it violates the right to equal protection under the law.

“There is no doubt that the directives in the president’s memorandum set apart transgender service members to be treated differently from all other military service members,” Garbis writes. “Defendants argue that deference is owed to military personnel decisions and to the military’s policymaking process. The court does not disagree. However, the court takes note of the amici of retired military officers and former national security officials, who state ‘this is not a case where deference is warranted, in light of the absence of any considered military policymaking process, and the sharp departure from decades of precedent on the approach of the U.S. military to major personnel policy changes.”

Garbis rendered the decision on the basis that the policy against transgender people should be viewed in the courts with heightened scrutiny, but also determined the military ban would fail under the less rigorous review of the rational basis standard.

The decision is the second ruling against Trump’s transgender military ban. Last month, a federal court in D.C. blocked Trump from enforcing the policy, although left standing a provision denying gender reassignment surgery for transgender service members.

That court decision also left in place a memo by Defense Secretary James Mattis delaying a change in policy until Jan. 1 that would have allowed openly transgender people to enlist in the armed forces.

But the Garbis ruling goes further, requiring the U.S. military to admit qualified transgender people and afford gender reassignment surgery to U.S. troops who need it as part of essential medical care.

Like the earlier court decision, Garbis cites Trump’s decision to announce the transgender military ban in July via Twitter as evidence it was driven by animus, and not a well thought-out military decision.

“A capricious, arbitrary, and unqualified tweet of new policy does not trump the methodical and systematic review by military stakeholders qualified to understand the ramifications of policy changes,” Garbis writes.

The lawsuit — one of four pending challenges to the transgender military ban — was filed by the American Civil Liberties Union, ACLU of Maryland and Covington & Burling LLP on behalf of six transgender service members fearing discharge under Trump’s policy.

The plaintiffs are Petty Officer First Class Brock Stone, Senior Airman John Doe, Airman First Class Seven Ero George, Petty Officer First Class Teagan Gilbert, Staff Sergeant Kate Cole, and Technical Sergeant Tommie Parker.

Joshua Block, senior staff attorney with the ACLU’s LGBT & HIV Project, said in a statement the decision “is a victory for transgender service members across the country.”

“We’re pleased that the courts have stepped in to ensure that trans service members are treated with the dignity and respect they deserve,” Block said.

Hogan Gidley, a White House spokesperson, said the Trump administration will continue to defend the transgender military ban in court.

“The president’s directive is legal and promotes our national security,” Gidley said. “The Department of Justice will vigorously defend it.”

Lauren Ehrsam, a Justice Department spokesperson, said the Trump administration disagrees with the decision by the court.

“We disagree with the court’s ruling and are currently evaluating the next steps,” Ehrsam said. “Plaintiffs’ lawsuit challenging military service requirements is premature for many reasons, including that the Defense Department is actively reviewing such service requirements, as the president ordered, and because none of the plaintiffs have established that they will be impacted by current policies on military service.”

Army Maj. Dave Eastburn, a Pentagon spokesperson, reiterated a study is in place within the Defense Department evaluating the issue of transgender military service.

“First and foremost, the health and welfare of our service members is of the upmost importance, and one of our top priorities,” Eastburn said. “That said, current interim guidance laid forth by the secretary of defense clearly states that persons diagnosed with gender dysphoria, by a military medical professional, will continue to serve. The current policy is under review and a recommendation will be made on the conditions of that policy from the secretary to the White House sometime early next year.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

1 Comment
  • That Trump’s ban on transgender military service members is unconstitutional under the Equal Protection Clause of the 14th Amendment is pretty obvious. What’s even more outrageous about Trump’s order is that it blatantly defies the clearly expressed will of Congress when it passed the 2010 law that repealed “Don’t Ask, Don’t Tell” — a breach of the constitutional separation of powers between the executive and legislative branches of government.

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