A federal judge in Washington, DC, on Monday suspended key parts of President Trump's policy to ban transgender troops from serving in the military — a policy slated to take effect fully in March 2018 — dealing a sharp rebuke to an administration that claimed transgender service members hamper the military’s strength and that Trump held supreme power to enact the ban.
US District Court Judge Colleen Kollar-Kotelly wrote in a 76-page decision granting a preliminary injunction that Trump’s justifications for the policy “do not seem to be supported by any facts,” noting “it appears that the rights of a class of individuals were summarily and abruptly revoked for reasons contrary to the only then-available studies.”
Kollar-Kotelly notes that transgender people “suffer severe persecution and discrimination,” saying the government must therefore supply an exceedingly persuasive justification for actions that target them — known as intermediate scrutiny. Having failed to meet that bar, she adds, six transgender people suing to overturn the ban are likely to prevail on constitutional grounds.
“The Court is convinced that Plaintiffs are likely to succeed in this lawsuit under the Fifth Amendment,” Kollar-Kotelly said.
The decision is the latest blow to an administration that has seen many of its flagship executive actions challenged and curbed in federal courts, while federal officials, including US Attorney General Jeff Sessions, have skewered lower-tier federal judges for issuing nationwide injunctions on federal policies.
Trump’s lawyers at the Justice Department had claimed earlier this month that a ruling to block the transgender military rules would be premature, given that the policy does not take effect until next March.
"No actual discharge or denial of accession has occurred, and they will not suffer a hardship if the Court withholds consideration," the government attorneys said in a 44-page brief.
Justice Department spokesperson Lauren Ehrsam told BuzzFeed News on Monday afternoon, “We disagree with the Court’s ruling and are currently evaluating the next steps.”
Ehrsam added the lawsuit was “premature for many reasons.”
But the judge cast aside those claims in her opinion Monday, writing, “This decision has already been made. These directives must be executed by a date certain, and there is no reason to believe that they will not be executed...Further delay would only serve to harm the Plaintiffs.”
Shannon Minter, legal director of the National Center for Lesbian Rights, which is representing the plaintiffs, called the order a “complete victory.”
In issuing an injunction, Kollar-Kotelly also reinstated a timeline to let transgender applicants join the military starting in January 2018. But her order does not block a policy concerning gender reassignment surgeries, and dismissed those claims along with an estoppel claim.
However, Minter said that an interim policy by Defense Sec. James Mattis still requires the military to provide transgender troops with those medical services and that the order “granted all the relief we are seeking.”
In 2016, the Obama administration concluded studies that found transgender troops would not burden the military and established rules to let them serve openly. In reversing a longstanding ban, the Pentagon also vowed to develop procedures for new transgender applicants to enlist.
But after a series of tweets in July that said transgender troops cause a “disruption” and require “tremendous medical costs,” Trump issued a memorandum in August reversing the Obama administration’s rules.
Lawyers for the National Center for Lesbian Rights and GLBTQ Legal Advocates & Defenders — two legal groups behind the lawsuit decided on Monday — argued in a lawsuit filed in July that Trump harbors animosity toward transgender people and that he has no rational basis for singling out transgender people for the ban, thereby violating Fifth Amendment rights to due process and equal protection.
The lawsuit is brought by active-duty transgender soldiers who fear being discharged, identified as Jane and John Doe, and two transgender students who plan to enlist in the military.
Judge Kollar-Kotelly's decision says the plaintiffs are likely to prevail, but notes the debate over the merits of the case will continue.
Her opinion applied a so-called intermediate level of scrutiny, on par with gender discrimination cases, saying transgender populations have been targeted for discrimination and harassment.
“Although the Court is aware of no binding precedent on this issue, it has taken note of the findings and conclusions of a number of other courts from across the country that have also found that discrimination on the basis of someone’s transgender identity is a quasi-suspect form of classification that triggers heightened scrutiny,” Kollar-Kotelly writes. "As a form of government action that classifies people based on their gender identity, and disfavors a class of historically persecuted and politically powerless individuals, the President’s directives are subject to a fairly searching form of scrutiny."
"The effect of the Court’s Order is to revert to the status quo with regard to accession and retention that existed before the issuance of the Presidential Memorandum — that is, the retention and accession policies established in the June 30, 2016 Directive-type Memorandum as modified by Secretary of Defense James Mattis on June 30, 2017," the decision states.
The White House did not immediately respond to a request from BuzzFeed News to comment on the decision.