Military transgender ban blocked by federal appeals court

The new rules would allow Defense Secretary James Mattis to retain troops who had been serving openly

Bob Egelko
San Francisco Chronicle

A federal appeals court in San Francisco rejected President Trump’s request Wednesday to put the latest version of his ban on most transgender military troops into effect while the court considers the government’s arguments that their service is expensive and disruptive.

A series of federal courts have blocked Trump from implementing the policy he first announced in a series of tweets in July 2017. Wednesday’s order by the Ninth U.S Circuit Court of Appeals was the first appellate decision on the executive order he issued in March that was less absolute than the previous ban.

The new rules would still largely bar transgender people from the armed forces, but would allow Defense Secretary James Mattis to retain those who had been serving openly under an order issued by President Barack Obama. That order, effective in June 2016, lifted a previous ban on transgender service and cited a Rand Corp. study that found their presence would not harm the armed forces, either financially or militarily.

That study estimated that medical care for all transgender people serving actively in the military would add only $8.4 million to the budget. Other studies have estimated the number of transgender service members at somewhere between 2,000 and 10,000. Obama ordered the Pentagon to lift its ban on transgender enlistment by July 2017, but the Trump administration has rejected that order.

U.S. District Judge Marsha Pechman of Seattle blocked the Trump administration’s revised ban from taking effect in April, ruling that it was essentially the same as Trump’s earlier order and would exclude “skilled and qualified service members.” She said the Army’s chief of staff, General Mark Milley, had told the Senate Armed Services Committee he had received “precisely zero” reports of any disruption or other problems caused by transgender troops.

In Wednesday’s ruling, the appeals court did not discuss the merits of the case but said the order sought by the Trump administration, suspending Pechman’s injunction while it was being appealed, “would upend, rather than preserve, the status quo,” contrary to standard legal procedures.

“The court rejected the government’s attempt to ‘upend’ the status quo, as well as the lives of transgender people serving and seeking to serve their country,” said Peter Renn, a lawyer for Lambda Legal, which represented current and prospective service members in the lawsuit.

One plaintiff, Army Staff Sgt. Cathrine Schmid of Tacoma, Wash., said in a statement through her lawyers, “Being transgender has no impact on my ability to perform my duties. ... I look forward to the day when we can put this argument behind us and focus on what’s really important — the accomplishment of our mission, and the welfare of our service members.”

The Justice Department could not be reached for comment. It could appeal to the Supreme Court, although the court could decline to take up the case at this stage.

In legal arguments filed this week, its lawyers said the new policy was “substantially different” than Trump’s previous order, and would serve the Defense Department’s “compelling interest in preventing harm to military readiness, unit cohesion (and) military resources.”

That is similar to the argument Trump made on Twitter in July 2017, when he said his “generals and military experts” had advised him that the armed forces could not afford the “tremendous medical costs and disruption” of continuing to allow transgender military service.

His decree caught military leaders by surprise, and several top Pentagon officials said at the time that transgender troops should continue to serve. Trump administration lawyers contended, however, that the revised policy had been reviewed by a “panel of military experts” and approved by Mattis in February, a month before Trump’s executive order.

Referring to some transgender troops’ need for hormones, other medication or sex-reassignment surgery, government lawyers said, “The military is under no constitutional obligation to fund every treatment its service members may desire, let alone adit those who will likely seek such measures.”

The Justice Department also likened the revised transgender order to the multiple versions of Trump’s ban on U.S. entry from a group of mostly Muslim nations. Lower federal courts declared the travel bans unconstitutional, relying in part on Trump’s anti-Muslim statements as a presidential candidate. But after the administration said Trump’s third travel ban was based on a review of other nations’ practices in screening U.S.-bound travelers, the Supreme Court upheld the order in a 5-4 ruling last month.

Like the opponents of the travel ban, supporters of transgender troops “urge this court to ignore the text of the 2018 policy and the extensive review process undertaken by Cabinet officials that supported it in favor of a myopic focus on the president’s past statements,” Justice Department lawyers told the appeals court.

Lambda Legal attorney Tara Borelli said Wednesday’s ruling, like those that preceded it, showed that the government’s claims of a new, legally justified policy were unfounded.

“We don’t think this ban is any different at all” from the earlier version, she said, “and the courts all seem to agree.”

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