The Pentagon. Photo: Department of Defense – Photo: Master Sgt. Ken Hammond, U.S. Air Force, via Wikimedia.
A federal court has ordered the U.S. Department of Defense to turn over documents related to the Trump administration’s ban on transgender service members serving openly, and its justification for the policy.
U.S. District Court Judge Marsha Pechman, of the Western District of Washington, ordered the Pentagon to turn over the documents, which the Pentagon had withheld by trying to claim that such documents were privileged and that handing over the documents could compromise sensitive information and damage the ability of Defense Department officials to debate future policies without fear that their deliberations will be made public.
“Finding that Defendants’ assertion of the deliberative process privilege is overcome by Plaintiffs’ need for the materials and the need for accurate fact-finding, the Court orders the Defendants to produce: 1) All documents responsive to Request for Production No. 29, including the names, communications, and deliberative documents of non-voting members of the Panel; and 2) Drafts, communications, and documents created or relied upon by officials in the Undersecretary of Defense’s Office in drafting the Report and Recommendations,” Pechman wrote in her order. “To mitigate any potential chilling effect upon the future deliberations of government actors, these documents shall be produced for attorneys’ eyes only.”
The plaintiffs in the case, which include eight individual plaintiffs — six current service members and two seeking to enlist — and the Human Rights Campaign, the Gender Justice League, and the Modern Military Association of America, have contended that the policy is discriminatory and based on anti-transgender animus.
They also point to reporting indicating that leaders of socially conservative organizations may have played a role in urging the Trump administration to adopt the policy, arguing that it is important to see any communications between those organizations and Pentagon authorities that may have ultimately influenced the president’s decision-making process.
The Pentagon, for its part, has argued that the so-called “Mattis Plan,” as the policy is otherwise known, is not a blanket ban, as transgender individuals who are already serving will be allowed to remain in the military, so long as they are not diagnosed with gender dysphoria and do not attempt to transition.
Department of Defense officials have also stated publicly that they have obtained data during a study of transgender troops that shows that the presence of transgender soldiers in military units carries “substantial risks” to the Armed Forces.
But that data has not been made public, and runs counter to previous statements by military officials who have claimed that the presence of transgender troops did not, in fact, harm military readiness or negatively impact unit cohesion.
The plaintiffs say that’s all the more reason to allow their lawyers to look at any communications between policy-makers to understand the rationale behind the policy.
“The government cannot conceal the truth about the development of this discriminatory policy and the absence of any justification for excluding qualified transgender people from serving our country,” Peter Renn, counsel for Lambda Legal, which is representing the plaintiffs in the case. “We look forward to the court shining a light onto what the government has fought very hard to hide.
“There is no cloak big enough to hide the deficiencies of the Pentagon’s rushed plan, which was cobbled together after-the-fact to backfill a justification for President Trump’s arbitrary tweets,” added Renn. “We look forward to having our day in court when we can prove at trial why this ban remains rank discrimination that cannot stand. This ruling brings us one step closer to that day.”
In June, the 9th U.S. Circuit Court of Appeals found that the government’s policy is discriminatory against transgender people and is subject to heightened scrutiny, meaning that the justification for the ban and the alleged “interest” that the government has in pursuing it need to be more carefully examined, as it may violate transgender individuals’ constitutional rights.
Similar fights over disclosure regarding the rationale behind the ban were recently fought in court in September, with a Michigan court ordering an anti-LGBTQ organization to turn over its communications with the Trump administration regarding the transgender ban, and a D.C. court requiring the military to provide documents and copies of communications that the military previously attempted to withhold.
Peter Perkowski, the legal and policy director of the Modern Military Association of America, which is an organizational plaintiff in the case, said his organization was “thrilled” with Pechman’s decision.
“Our transgender service members have proven time and again that they are ready to serve, they are willing to serve, and they are able to serve,” Perkowski said in a statement. “Through this ruling, we will have the opportunity to explore the full extent of the Trump-Pence Administration’s motivations behind their proposed ban to constrain the military service of these honorable, transgender patriots.”
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