SEATTLE, Wash. — A federal judge has left in place the previous injunction on President Trump’s military service ban for those with gender dysphoria, putting on hold the newest presidential memo issued in alignment with recommendations from Secretary of Defense Gen. James Mattis, but allowing the government to prove that it was motivated by a compelling interest rather than discrimination.
“The court finds that the 2018 Memorandum and the Implementation Plan do not substantively rescind or revoke the ban, but instead threaten the very same violations that caused it and other courts to enjoin the ban in the first place,” wrote U.S. District Judge Marsha Pechman, appointed to the bench by then-President Bill Clinton.
Additional time will be needed for the court to consider whether the Defense Department’s new policy is just, she said.
“A policy will survive strict scrutiny only where it is motivated by a ‘compelling state interest’ and the means chosen ‘fit the compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate … prejudice or stereotype,'” Pechman outlined.
“Whether the defendants have satisfied their burden of showing that the ban is constitutionally adequate (i.e. that it was sincerely motivated by compelling state interests, rather than by prejudice or stereotype) necessarily turns on facts related to defendants’ deliberative process,” she said. “… [T]hese facts are not yet before the court.”
The matter will consequently proceed to trial as additional considerations are needed.
“For the same reason it cannot grant summary judgment as to the level of deference due at this stage, the court cannot reach the merits of the alleged constitutional violations,” Pechman explained.
As previously reported, last month, President Trump issued a new memorandum outlining the recommendations of Gen. Mattis, who submitted that those with gender dysphoria should be considered ineligible, with “limited” exceptions.
“Based on the work of the Panel and the Department’s best military judgment, the Department of Defense concludes that there are substantial risks associated with allowing the accession and retention of individuals with a history or diagnosis of gender dysphoria and require, or have already undertaken, a course of treatment to change their gender,” Mattis wrote to Trump on Feb. 22.
“Furthermore, the Department also finds that exempting such persons from well-established mental health, physical health, and sex-based standards, which apply to all service members, including transgender service members without gender dysphoria, could undermine readiness, disrupt unit cohesion, and impose an unreasonable burden on the military that is not conducive to military readiness,” Mattis added.
He suggested three exceptions, one being if a person diagnosed with gender dysphoria can demonstrate a period of at least 36 months where they no longer suffer from the psychological condition. Those diagnosed with gender dysphoria who do not seek to “transition” to the opposite sex, and are deployable, may also serve. Those who have already been serving prior to the effective date of the new policy would not be discharged.
Trump, noting that Mattis believes that those who “may require substantial medical treatment, including medications and surgery” are not in a position to serve, revoked his previous memorandum and directed Mattis to exercise his authority to implement military policies pertaining to gender dysphoria as he sees fit.
As previously reported, last July, Trump announced his initial decision to reinstate the ban on transgenders in the military, advising that the issue is a distraction and would place a burden on the finances of the Armed Forces.
“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,” he tweeted. “Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgenders in the military would entail. Thank you.”
Weeks later, five service members filed suit to challenge the ban, with the assistance of the National Center for Lesbian Rights and GLBTQ Legal Advocates and Defenders.
Judge Colleen Kollar-Kotelly, appointed to the bench by then-President Bill Clinton, issued an injunction in favor of the complainants in October, writing in part, “On the record before the court, there is absolutely no support for the claim that the ongoing service of transgender people would have any negative effective on the military at all. In fact, there is considerable evidence that it is the discharge and banning of such individuals that would have such effects.”
She ordered the government to allow enlistment of those with gender dysphoria to proceed as originally intended by the Obama administration. Enlistment began on Jan. 1.
Pechman had also ruled against the ban last year (four judges weighed in on the matter), and in Friday’s decision, she said that the newest memorandum will need to undergo the most rigorous form of review.
“Because transgender people have long been subjected to systemic oppression and forced to live in silence, they are a protected class. Therefore, any attempt to exclude them from military service will be looked at with the highest level of care and will be subject to the court’s ‘strict scrutiny,’” she wrote.
“The court notes that defendants’ claimed justifications for the ban—to promote ‘military lethality and readiness’ and avoid ‘disrupt[ing] unit cohesion, or tax[ing] military resources’— are strikingly similar to justifications offered in the past to support the military’s exclusion and segregation of African American service members, its ‘Don’t Ask, Don’t Tell’ policy, and its policy preventing women from serving in combat roles,” Pechman opined.
The late British preacher Charles Spurgeon once said, “God be thanked when the Law so works as to take off the sinner from all confidence in himself! To make the leper confess that he is incurable is going a great way toward compelling him to go to that divine Savior, who alone is able to heal him. This is the whole end of the Law toward men whom God will save.”
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