The Pentagon. Photo: Department of Defense – Photo: Master Sgt. Ken Hammond, U.S. Air Force, via Wikimedia.
The U.S. Court of Appeals for the District of Columbia Circuit has dealt a blow to transgender advocates in a case challenging the Trump administration’s proposed plan to bar most transgender people from serving in the U.S. military.
The injunction, previously issued and stayed by U.S. District Court Judge Colleen Kollar-Kotelly in the case of Doe v. Trump, had blocked the Pentagon from attempting to discharge transgender service members under the so-called “Mattis Plan” issued by former Secretary of Defense Jim Mattis in March 2018.
Under the Mattis Plan, also known as “Deploy or Get Out,” transgender individuals who have been diagnosed with gender dysphoria, take hormones, or are in the process of transitioning are considered “undeployable.” As such, the Pentagon wishes to discharge those members, citing a need for “military readiness,” specifically the ability to be deployed overseas for long periods of time at a moment’s notice.
Following President Trump’s July 2017 announcement of a ban on all transgender military personnel, several transgender active-duty service members, prospective recruits, and graduates of military academies filed lawsuits in four separate federal courts, arguing that such a ban is both discriminatory and unconstitutional. Lower courts issued injunctions to stop the Pentagon from implementing the policy, but have not yet ruled on the merits of the ban.
Because the Mattis ban does not categorically ban all transgender people from serving, the Trump administration has repeatedly argued that it is substantially different from the administration’s previous attempt to expel all transgender individuals from the Armed Forces regardless of their individual ability to serve.
In an opinion issued Friday, the D.C. Circuit indicated that it agreed with the Trump administration’s arguments, saying the government “took substantial steps to cure the procedural deficiencies the court identified in the enjoined 2017 Presidential Memorandum.”
These steps include the creation of a panel of military and medical “experts,” who claim to have looked at evidence relating to the ability of transgender service members to integrate into their units without serving as a distraction or hindering military readiness, and who have cast aspersions on the intentions and motivations of Department of Defense officials in the Obama administration.
“Although the parties dispute whether these efforts were independent of the policy announced in the 2017 Presidential Memorandum, the record indicates that it was error for the district court to conclude that the Mattis Plan was foreordained,” the court wrote.
The court also ruled that, because transgender individuals have previously served in their assigned sex at birth under past administrations, and because not all transgender people have been diagnosed with gender dysphoria or ultimately undergo gender confirmation surgery, the Mattis Plan — which says they can only remain in the military if they suppress their true gender identity — does not need to be blocked from going into effect while the plaintiffs challenge the merits of the policy in the courts.
Protesters outside the White House objecting to Trump’s proposed transgender military ban. – Photo: John Riley / File Photo
“Although the Mattis Plan continues to bar many transgender persons from joining or serving in the military, the record indicates that the Plan allows some transgender persons barred under the military’s standards prior to the Carter Policy to join and serve in the military,” the court wrote. “The Mattis Plan, for example, contains a reliance exemption that will allow at least some transgender service members to continue to serve and receive gender transition-related medical care.”
The circuit court did not immediately lift the injunction in the case, but left it in place until a later time, when it plans to issue longer, more detailed rulings. The delay in lifting the injunction is designed to give the plaintiffs opportunity to determine whether to request a rehearing by all sitting members of the D.C. Circuit.
LGBTQ advocates blasted the court’s decision and criticized the justices for using faulty logic in reaching their decision.
“Today’s decision is based on the absurd idea that forcing transgender people to suppress who they are in order to serve is not a ban,” Jennifer Levi, the Transgender Rights Project Director for GLBTQ Legal Advocates and Defenders, said in a statement. “It ignores the reality of transgender people’s lives, with devastating consequences, and rests on a complete failure to understand who transgender people are. It is also destabilizing to the military to so dramatically reverse a policy that has been in place for over 2 years that senior military officials acknowledge has operated with no problems.”
Despite today’s ruling, the three remaining preliminary injunctions — in Maryland, Washington State, and California — remain in effect, hampering the Trump administration from moving forward with discharge proceedings against transgender military members. Were those injunctions to be dissolved, it is possible that some transgender people could be forced out of their careers and lose their benefits while the courts wrangle with the constitutionality of the Mattis Plan.
“Today’s ruling is a devastating slap in the face to transgender service members who have proved their fitness to serve and their dedication to this country,” said Shannon Minter, the legal director for the National Center for Lesbian Rights, which is representing the plaintiffs in both the Doe case and the Stockman v. Trump case out of California.
“We will keep fighting this cruel and irrational policy, which serves no purpose other than to weaken the military and punish transgender service members for their patriotism and service.”
The Palm Center, which studies LGBTQ inclusion in the military, also criticized the court’s decision, comparing the transgender ban to the now-defunct “Don’t Ask, Don’t Tell” policy that prevented gay, lesbian, and bisexual people from serving in the military. Aaron Belkin, the Palm Center’s director, also expressed skepticism about the Trump-convened panel’s contentions that the presence of transgender individuals hurts unit cohesion or military readiness.
“All five military Chiefs of Staff have testified that inclusive policy has been a success, with JCS Chairman-designate Mark Milley reporting ‘precisely zero’ problems,” Belkin said in a statement. “Retired military Surgeons General — the senior medical offices in their services — issued a 55-page report finding that the Trump-Mattis policy is ‘wholly unpersuasive’ and will harm military readiness. The American Medical Association and six former Surgeons General have confirmed that the Mattis policy is based on dishonest medical assertions.
“Whipsaws in military personnel policy are damaging to military readiness,” Belkin added. “This is particularly true at a moment when recruitment is down, and the nation lacks a Senate-confirmed Defense Secretary. Acting Secretary [Patrick] Shanahan should confirm what the Chiefs have already stated: inclusive policy is a success and transgender service members continue to be a welcome and successful part of the U.S. military.”