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Judge: Transgender military ban is stigmatizing, likely harmful already

By ANN E. MARIMOW | The Washington Post | Published: November 9, 2017

President Donald Trump's proposed transgender military ban stigmatizes an entire group of people and is likely already having a negative effect on active-duty service members trying to plan for future military assignments, a federal judge said Thursday.

The comments from U.S. District Judge Marvin J. Garbis came during a court hearing in Baltimore in one of four cases throughout the country brought by transgender service members challenging the administration's policy slated to take effect in March.

"They are certainly suffering a stigma that exists by virtue of the president's statements," Garbis said.

Attorneys for the six active-duty service members in Maryland are asking the judge to block the order that would prohibit transgender men and women from enlisting, possibly subject current service members to discharge and deny certain medical care. The order reverses an Obama administration policy allowing transgender men and women to serve openly and to receive funding for sex-reassignment surgery.

Government lawyers said in court filings that the challenge is premature because the president's policy is not yet in effect and is still being reviewed by the Defense Department. In the interim, the government said, Defense Secretary Jim Mattis has made clear that no service members will be discharged or denied reenlistment solely because they are transgender.

"The president did not decide to discharge all transgender people after March 23," said Justice Department lawyer Brett Shumate. "It is speculation, built on speculation."

More broadly, Shumate said the court should not second guess the president when it comes to military affairs.

The Maryland lawsuit was initially filed days after President Trump surprised military leaders and members of Congress in July when he abruptly announced the proposed ban in a series of tweets. After announcing the ban, Trump said he was "doing the military a great favor" by "coming out and just saying it," rather than waiting for a Defense Department study.

As in other lawsuits challenging the president's policies, Trump's words were used against him in court on Thursday.

"Taking the president at his word in his tweets and in his memo is not speculation," said American Civil Liberties lawyer Joshua A. Block, the lead attorney for the transgender service members. "If you read the president's words, it is clear what he means," said Block.

The hearing in federal court in Baltimore came one week after a judge in Washington sided with a separate group of transgender service members in issuing a preliminary injunction against the policy and saying that it "does not appear to be supported by any facts."

Garbis rejected the government's request to put the Maryland case on hold pending its appeal in the D.C. lawsuit and centered his questions on the section of the president's order that would halt government funding for sex-reassignment surgery. Garbis did not indicate when he would rule.

In the D.C. case, U.S. District Judge Colleen Kollar-Kotelly wrote, "There is absolutely no support for the claim that the ongoing service of transgender people would have any negative effect on the military at all. In fact, there is considerable evidence that it is the discharge and banning of such individuals that would have such effects."

Kollar-Kotelly, however, did not rule specifically on the provision that bars funding for medical care because she said none of the plaintiffs had shown they were likely to be affected.

In the Maryland case, Block told the court Thursday that two plaintiffs are in the process of trying to schedule transition-related surgical care and will not be able to receive surgery before the policy's March start date.

Seated in the front of the courtroom Thursday was Navy Petty Officer 1st Class Brock Stone, who is based at Fort Meade and has served in the Navy for 11 years, including a nine-month deployment to Afghanistan. Stone has been receiving treatment at Walter Reed National Military Medical Center and is trying to schedule surgery related to sex reassignment in 2018, according to the lawsuit.

"People have medical plans. They need to move forward with their lives," Block said.

But the government lawyer told the court that no one has yet been denied treatment and that it is too soon to say whether exceptions in the policy that allow for funding certain surgical procedures already underway would apply to the plaintiffs.

"They may very well fall in that exception," Shumate said. "I can't make any commitment."

Garbis seemed dissatisfied with the government's answer.

"You're not willing to say they will meet the exception?" he asked.

Estimates vary widely about the number of transgender military members. One recent study by the Rand Corp. put the number on active duty at about 2,500, while another from the Williams Institute at UCLA School of Law estimated that there were 15,500 on active duty, in the National Guard and in the reserves. Eighteen other countries allow transgender troops to serve.

Silhouettes of servicemembers seen saluting on the backdrop of a multi-colored flag illustrates lesbian, gay, bisexual and transgender pride month celebrations at Cannon Air Force Base, N.M., in June 2014.
SHELBY KAY-FANTOZZI/U.S. AIR FORCE

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