Judge grills DOJ attorney over legality of Pentagon’s transgender service member ban

Judge Ana Reyes grilled a Department of Justice (DOJ) attorney over the legality of the new transgender service member ban policy by the Pentagon.

In January, Nicolas Talbott, a transgender army second lieutenant who previously campaigned for his right to join the military, and seven others filed a complaint with the U.S. District Court for the District of Columbia. The case alleges that the ban violates the Due Process clause of the Fifth Amendment by discriminating against people “based on their sex and based on their transgender status”.

On Wednesday (12 March), Judge Reyes – who previously teared apart Trump’s anti-trans executive orders – probed the DOJ lawyer over the ban, arguing that the Pentagon’s policy is based on a flawed idea of what gender dysphoria is. 

Reyes claimed that the government “egregiously misquoted” and “cherry picked” scientific studies to falsely suggest that trans soldiers negatively impact the readiness and lethality of the military.

Although Judge Reyes has not issued a formal ruling yet, she repeatedly claimed that the policy singles out a group of people that the Trump-Vance administration “disfavours”. 

She said: “The question in this case is whether the military under the equal protection rights afforded to every American under the due process clause of the Fifth Amendment, if the military…can do that and targeting a specific medical issue that impacts a specific group that the administration disfavors.”

Reyes also asked DOJ lawyer Jason Manion to identify other medical reasons that would disqualify a group of people from serving in the military. She said, “Identify for me a single other time in recent history where the military has excluded a group of people for having a disqualifying issue, because I can’t think of one.”

Manion compared the trans military ban to the COVID-19 policy, whereby personnel who declined to take the vaccine were “suspended from command, notified of pending relief from duties, counseled, and provided the opportunity to be vaccinated before they are subject to being removed from their positions by a general officer”, as per Tricare.

To this, Judge Reyes rebuked by showing Manion that Coronavirus affected many people, not just one group. She asked those in the gallery to raise their hand if they had ever gotten the virus. 

“Lots of people raise their hands, right?” Judge Reyes said. “All different kinds of people … so it wasn’t just aimed at getting rid of one group of people.”

The plaintiffs argued that “this case is a test of the core democratic principle that makes our country worth defending — that every person is of equal dignity and worth and is entitled to equal protection of the laws”.

However, DOJ attorneys argued that the court should not step in when it comes to military decisions. They described gender dysphoria as causing “clinically significant distress or impairment in social, occupational, or other important areas of human functioning”.

“DoD has been particularly cautious about service by individuals with mental health conditions, given the unique mental and emotional stresses of military service,” government attorneys added.

What is the Pentagon’s policy on trans military personnel?

The memo, as per Reuters, insists that the Pentagon create a procedure to identify trans troops within 30 days, and within 30 days of that, start to “separate” them from the military.

“It is the policy of the United States government to establish high standards for service member readiness, lethality, cohesion, honesty, humility, uniformity and integrity,” the memo is said to order. “This policy is inconsistent with the medical, surgical and mental health constraints on individuals with gender dysphoria or who have a current diagnosis, or history, of, or exhibit symptoms consistent with, gender dysphoria.”

Exemptions would only be granted “provided there is a compelling government interest in retaining the service member that directly supports war-fighting capabilities”. To be exempt, an officer has to meet certain criteria, including being able to “demonstrate 36 consecutive months of stability in the service member’s sex without clinically significant distress”.

The policy follows on from President Donald Trump’s anti-trans executive order banning trans people from serving in the military.