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US appeals court rules in favor of Trump transgender ban, but policy still can’t be enforced

Parade participants march down Market Street carrying the rainbow flag during the annual Gay Pride parade in San Francisco, Calif. on Sunday, June 30, 2013.

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By CLAUDIA GRISALES AND CAITLIN M. KENNEY | STARS AND STRIPES Published: January 4, 2019

WASHINGTON – A federal appeals court on Friday ruled in favor of a controversial Trump administration ban of transgender personnel in the military, though the policy can’t be implemented yet because of ongoing lawsuits.

The U.S. Court of Appeals for the District of Columbia said a lower court judge erred in blocking the policy, also known as the “Mattis Plan,” which was named for former Defense Secretary Jim Mattis who drafted its specifics. The policy originated from a proposal in 2017 by President Donald Trump.

While Friday’s ruling isn’t final, the three-judge panel concluded public interests outweigh the injunction to halt the policy.

“Although today’s decision is not a final determination on the merits, we must recognize that the Mattis Plan plausibly relies upon the ‘considered professional judgment’ of ‘appropriate military officials,’” the ruling states. “In light of the substantial constitutional arguments and the apparent showing that the policy accommodates at least some of Plaintiffs’ interests, we think that the public interest weighs in favor of dissolving the injunction.”

A White House effort to ban transgender people from military service has been mired in confusion, chaos and a web of litigation nearly two years after Trump fired off tweets that ignited the controversy, experts have said.

For now, a 2016 Pentagon policy to open the military to transgender individuals remains in place, but a Trump administration effort to reverse that plan has created a chilling effect for potential recruits and heightened fears for some servicemembers, some advocates for transgender personnel have said.

On Friday, the Defense Department lauded the appeals court ruling.

“The department is pleased with the D.C. Circuit's decision. However, the department remains bound by three other court orders that require continued implementation of the [former Defense Secretary Ash] Carter policy,” Pentagon spokeswoman Jessica Maxwell said.  “The department will continue to adhere to those orders.”

Maxwell went on to say the Defense Department is consulting with the Justice Department on the next steps in the litigation. As always, the Defense Department treats all transgender servicemembers with respect and dignity, she added. 

“We look forward to continuing to press our case in the courts,” Maxwell said. “It is critical that the department be permitted to formulate personnel policies that it determines are necessary to ensure the most lethal and combat effective fighting force in the world.”

At least four court cases have put the Trump transgender ban on hold, and could extend into a fight for months or years, experts have said.

Several groups advocating for transgender personnel on Friday decried the ruling, but said their fight will continue.

“Today’s ruling is a devastating slap in the face to transgender servicemembers who have proved their fitness to serve and their dedication to this country,” said Shannon Minter, legal director of the San Francisco-based nonprofit National Center for Lesbian Rights. “We will keep fighting this cruel and irrational policy, which serves no purpose other than to weaken the military and punish transgender servicemembers for their patriotism and service.”

Jennifer Levi, director of the Transgender Rights Project for GLBTQ Legal Advocates & Defenders, or GLAD, said Friday’s decision was “based on the absurd idea that forcing transgender people to suppress who they are in order to serve is not a ban.”

Aaron Belkin, director of San Francisco-based Palm Center, a think tank that has specialized on sexual minorities in the military, said the Mattis policy would have the same impact as the military’s previous “Don't Ask, Don't Tell” ban of openly gay servicemembers.

“Whipsaws in military personnel policy are damaging to military readiness. This is particularly true at a moment when recruitment is down, and the nation lacks a Senate-confirmed defense secretary,” Belkin said. “Acting Secretary [Pat] Shanahan should confirm what the chiefs have already stated: inclusive policy is a success and transgender servicemembers continue to be a welcome and successful part of the U.S. military.”

Trump caught the Pentagon by surprise in July 2017 when he announced through a series of three tweets that he would ban transgender individuals from military service, reversing a 2016 policy announced by Carter. But Trump’s ban was blocked from implementation through ongoing challenges to it in federal court.

“After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you,” Trump’s July 26, 2017 tweets read.

About a month later, Trump formally issued a new directive to the Defense Department to issue the ban. With that, Mattis issued a new 48-page policy in March to ban most transgender individuals from serving in the military. The transgender military ban by Trump has since been blocked by four federal judges, with injunctions pending the outcome of four discrimination lawsuits filed by transgender individuals and advocates against the federal government.

Following the Trump tweets, a bipartisan group of lawmakers, including the late Arizona Republican Sen. John McCain, then-chairman of the Senate Armed Services Committee, former Sen. Orrin Hatch, R-Utah, and more than 50 retired generals and admirals condemned the move.

Other senators have since filed legislation to block a military transgender ban. Sen. Kirsten Gillibrand, D-N.Y., through a series of Senate Armed Services Committee hearings last year, was able to confirm with all four military service chiefs that transgender servicemembers have not impacted morale or created problems for the services. Also, current and former top U.S. medical officials charged the ban was not based on a medically valid reason.

“There is almost no support for this, this is purely a political move by this president,” Rep. Adam Smith, D-Wash., now chairman of the House Armed Services Committee, told reporters during a July 2018 briefing on the matter. “Our military is stronger when it is open and allows all to serve.”

The court cases are moving forward in Washington state, California, the District of  Columbia and Maryland, and a trial is slated for later this year for at least one of the cases.

A Pentagon policy issued last year by Mattis calls for the reversal of the policy by former President Barack Obama’s administration to lift the ban on transgender men and women serving in the military, but allows people serving now to remain in the service. The new policy would disqualify from service all transgender people who require or have already undergone gender transition, and bans people with current or recent gender dysphoria diagnosis other than in rare circumstances.

grisales.claudia@stripes.com
Twitter: @cgrisales

kenney.caitlin@stripes.com
Twitter: @caitlinmkenney

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