February 7, 2018 at 10:22 pm EST | by Chris Johnson
Court: DOJ to defend new trans military policy after Feb. 21
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The Justice Department says it will defend a new transgender military policy in court starting Feb. 21.

The Trump administration is set to unveil a new policy on transgender people in the U.S. armed forces on Feb. 21 that the U.S. Justice Department expects to defend in court, according to a court document.

U.S. District Judge Marvin Garbis, who’s adjudicating the lawsuit against President Trump’s transgender military ban filed by the American Civil Liberties Union, disclosed the Justice Department’s plans in a memo dated Feb. 6 on the process for disclosure in the case. Buzzfeed was first to report the news.

According to the memo, although the ACLU is calling on the Justice Department to comply with an initial disclosure request, the Trump administration is seeking to get out of it because a new policy will soon be on the table.

“Defendants’ counsel contend that they cannot now comply because they will not be defending the policy now at issue but will be defending the policy to be disclosed on Feb. 21, 2018,” Garbis writes.

After Trump announced via Twitter in June he’d ban transgender people in the military “in any capacity,” he followed up in August with a directive to the Pentagon on implementing the exclusion of transgender people from the military.

The Feb. 21 date identified in the court memo is consistent with the due date set in the Trump directive for a report from the Pentagon to Trump on transgender military service. The directive designates the report as an “implementation plan” and didn’t say new policy would follow per se.

The Justice Department declined to comment on the nature of any new policy. The White House didn’t immediately respond to the Washington Blade’s request to comment.

Maj. David Eastburn, a Pentagon spokesperson, said he’s “not sure what policy they’re referring to,” but the Pentagon will prepare “recommendations” for the president.

“I know the SECDEF will be making his recommendation to POTUS this month, then POTUS announces the new policy next month, but that’s all I’m tracking,” Eastburn said.

The litigation before Garbis is one of four pending lawsuits challenging Trump’s transgender military ban. Each of the judges in those cases have issued preliminary injunctions blocking enforcement the ban as litigation continues. The Justice Department has given up on appealing those injunctions, focusing instead on defending Trump’s ban in trial court.

Joshua Block, the attorney litigating against the ban on behalf of the American Civil Liberties Union, said any new policy barring transgender people from service will be challenged in court.

“If the ‘recommendations’ exclude transgender people serving, we will be ready to argue that the allegedly new policy is just a continuation Trump’s old ban with window dressing,” Block said.

Sarah McBride, a spokesperson for the Human Rights Campaign, said in a statement any new policy other than allowing transgender people to serve would be discriminatory.

“There are currently thousands of transgender people serving in the U.S. military with many more enlisting and their skills and service are already proving invaluable to our national security,” McBride said. “In their repeated attempts to implement and justify this cruel and unconstitutional policy, the Trump-Pence Administration has been the only source of disruption on this issue.”

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

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