A federal judge in Washington, D.C., has blocked most of President Donald Trump’s prohibition of transgender military service, while leaving the ban on Defense Department funding of gender reassignments intact.
Trump’s ban on transgender military service has been the target of a growing number of lawsuits since he first announced the policy via tweet in late July and subsequently issued a presidential memorandum on the subject in August.
The plaintiffs, current or aspiring members of the military who are transgender, claim that Trump’s ban violates their constitutional rights to due process. U.S. District Judge Colleen Kollar-Kotelly of the District of Columbia denied the White House’s request to dismiss those claims.
Kollar-Kotelly reasoned in her Monday opinion that the plaintiffs would likely prevail on their Fifth Amendment claims.
“As a form of government action that classifies people based on their gender identity, and disfavors a class of historically persecuted and politically powerless individuals, the president’s directives are subject to a fairly searching form of scrutiny,” Kollar-Kotelly wrote.
“Plaintiffs claim that the president’s directives cannot survive such scrutiny because they are not genuinely based on legitimate concerns regarding military effectiveness or budget constraints, but are instead driven by a desire to express disapproval of transgender people generally,” the judge continued. “The court finds that a number of factors—including the sheer breadth of the exclusion ordered by the directives, the unusual circumstances surrounding the president’s announcement of them, the fact that the reasons given for them do not appear to be supported by any facts, and the recent rejection of those reasons by the military itself—strongly suggest that plaintiffs’ Fifth Amendment claim is meritorious.”
However, Kollar-Kotelly ruled in favor of the administration in deciding that the plaintiffs did not have grounds to challenge the ban on military-funded gender reassignment surgeries.
“None of the plaintiffs have demonstrated an injury in fact with respect to the Sex Reassignment Surgery Directive. First, only some plaintiffs are implicated by the provision at all. For those that are, the risk of being impacted by the Sex Reassignment Surgery Directive is not sufficiently great to confer standing,” Kollar-Kotelly said.
The judge added that some of the plaintiffs are not yet in the military and have expressed their intent on having the surgery prior to enlistment.
Trump’s ban would upend the protections extended to transgender servicemembers by his predecessor.
In June 2016, President Barack Obama and former Defense Secretary Ash Carter announced a change in standing policy for transgender people serving in the armed forces. The announcement included a one-year plan to allow transgender people to enlist and immediately made it so service members could no longer be discharged for being transgender. In August, Defense Secretary James Mattis delayed the July 1 deadline to begin enlisting transgender people by six months.
Kevin M. Lamb of Wilmer Cutler Pickering Hale and Dorr represents the plaintiffs and deferred comment to Jennifer Levi of GLBTQ Legal Advocates & Defenders, who said, “We are thrilled with the decision. The court enjoined the military from excluding transgender people from service and recognized that people who are capable must be allowed to serve. The court rejected the government’s argument that there is any military rationale for excluding transgender people from serving.”
Ryan B. Parker, an attorney with the Department of Justice, did not respond to a request for comment.