Trump's limits on transgender people in military gets first appeals hearing
By MAXINE BERNSTEIN | The Oregonian | Published: October 11, 2018
PORTLAND (Tribune News Service) — Lawyers for President Donald Trump urged a federal appeals court in Portland to allow the president to bar certain transgender people from military service, arguing Wednesday that they harm the country's national defense.
Brinton Lucas of the U.S. Department of Justice asked the 9th U.S. Circuit Court of Appeals to lift a Washington district judge's preliminary injunction that halted the proposed policy and to declare it constitutional.
Lucas said there was an urgency to the ruling, saying the current policy that allows transgender people to serve openly in U.S. armed forces "imposes a risk to military readiness."
The hearing marked the first time a federal appeals court heard oral arguments on the Trump administration's 2018 plan.
Attorneys for nine transgender people and the state of Washington said the federal judge in Washington properly found that transgender people are a protected class and that any attempt to exclude them from the military should face strict court scrutiny.
"We have a policy that's discriminatory on its face and targets a minority group," said Stephen Patton, representing the plaintiffs. "For these young men and women who want to join the military, they cannot. They can only serve with a scarlet A around their neck because they've been branded unfit."
Lambda Legal, a nonprofit national organization that works for the civil rights of lesbians, gay men, bisexuals and transgender people, and OutServe-SLDN, a network of LGBT military personnel, filed a federal lawsuit in Seattle in August 2017, challenging the constitutionality of the ban.
It followed President Trump's tweets in July 2017 announcing the move and a proposal in late July on how to put it into practice. The proposed ban was revised this year. It would overturn the 2016 policy under former President Barak Obama that permitted transgender people to serve openly in the military.
Six of the plaintiffs currently serve in the military and three want to enlist. The Human Rights Campaign, the Seattle-based Gender Justice League and the American Military Partner Association also are plaintiffs. The state of Washington joined the lawsuit last November.
Federal judges in six courts – in Washington state, California, Maryland, the District of Columbia and the District of Columbia and 4th Circuit Courts of Appeals – have ruled against the ban and maintained preliminary injunctions against it.
Among the plaintiffs is Army Staff Sgt. Cathrine "Katie" Schmid, 34, who grew up in Gresham and joined the military at age 20. Schmid underwent a gender transition while in the service and now is stationed at Joint Base Lewis-McChord in Washington.
While Schmid likely would be able to continue in the military under Trump's proposal, the sergeant said the president's restrictions would make transgender people already serving viewed as second-class citizens, unequal to their peers.
"I'm perfectly capable of doing my job," Schmid said outside Pioneer Courthouse after the hearing.
Schmid's cellphone tracks the days until retirement: 2,333. "The moment that I take off that uniform for the last time I intend for it to be after a retirement, not after being discharged for a medical condition that has absolutely nothing to do with my capability to serve," Schmid said.
President Trump initially backed a full ban, barring transgender people from the military in any capacity and directed his defense secretary to carry it out.
Then in March, he said he supported a policy that would allow an exception but still would disqualify many transgender troops who have gender reassignment surgery. The plan excludes people "with a history or diagnosis of gender dysphoria" and people who "require or have undergone gender transition," with a few exceptions. It provides that transgender people may serve in the military only in their "biological sex."
Defense Secretary James Mattis had recommended barring transgender people "who require or have undergone gender transition and use of military resources for transition-related medical care." It contains a narrow exemption, allowing service by transgender people who entered or remained in the military since the 2016 open policy.
Justice Department lawyers argued that the latest plan resolves constitutional challenges.
Lucas estimated that 71 percent of Americans, between the ages of 17 and 24, are prevented from entering the military because they can't meet the military's stringent standards. "That doesn't mean anyone who can't meet standards is stigmatized," he said.
Lucas said military officials are concerned that people with gender dysphoria have higher rates of psychiatric hospitalization and suicidal behavior even after transition and that transition-related treatment could keep transgender troops off the job for long periods and cost a lot of money.
According to the American Psychiatric Association, which opposes the military ban, gender dysphoria is "clinically significant distress" due to a conflict between gender identity and sex assigned at birth. Not all transgender people suffer from gender dysphoria, the association says.
The government fears "subjecting these individuals to the unique stresses of the military environment," Lucas said.
"The military wants people to come in and be ready to deploy on day one and be ready to serve without any limitation," he said.
Patton called the government's argument a "smokescreen" for what essentially would be a military ban on transgender people.
"Ladies and gentlemen, this is not about gender dysphoria. That's lipstick on a pig," he said. "Gender dysphoria is a treatable condition. ... If this policy were implemented, the only way a transgender person could serve is if they served as they did before in their birth assigned sex."
Top leaders of the Army, Navy, Air Force and Marine Corps each have testified at Senate hearings that there has been no negative impact from open service by transgender troops, Patton noted. Their testimony undercuts the administration's claim that the ban protects military readiness, he said.
Washington's attorney general intervened in the case, estimating that the state is home to 32,850 transgender people and the ban subjects them to discrimination. Oregon was among 18 states and the District of Columbia that filed "friend of the court" briefs in support of the plaintiffs.
A trial in the Washington case is set for April. The appeals court could rule at any time.