Appeals court considers ban on service members who identify as transgender

The Washington D.C. Circuit Court of Appeals on Tuesday heard arguments from the government in its bid to overrule a lower court judge’s decision. U.S. District Judge Ana Reyes last month ruled that the Trump administration cannot bar individuals who identify as transgender from serving in the military. She characterized the policy as demeaning and said the government did not have evidence to support its claims that the individuals are unfit to serve. Reyes, who was appointed by former President Joe Biden, is the first federal D.C. judge to openly identify as LGBT, according to the pro-LGBT media outlet The Washington Blade. She issued an injunction to prevent the government from enforcing the policy until the case is decided. The 9th Circuit Court of Appeals last week denied the Department of Defense’s request for an emergency stay in the injunction ahead of this week’s hearing. For now, defense officials cannot expel service members who claim to be transgender.

What did the two sides argue in the hearing? The policy in question is materially similar to a policy enacted during Trump’s first presidency that prohibited people who identify as transgender from serving in the military, according to attorney Jason Manion, who argued on behalf of the government. In that case, several lower courts blocked the policy but the U.S. Supreme Court later allowed the ban to proceed. Biden later lifted the ban. The judges on Tuesday questioned whether the government could prove that individuals diagnosed with gender dysphoria were not deployable in the same way those diagnosed with depression were unable to serve. Manion argued the court should defer to military judgement in the matter and said the order would only be illegal if it was based solely on animus.

Meanwhile, Shannon Minter, a lawyer representing the 32 plaintiffs and the legal director at the National Center for Lesbian Rights, said the government has not shown that allowing the individuals to serve would cause concrete harm. He argued that the individuals who said they were transgender met other mental and physical qualifications to perform their roles. Minter also argued that the policy showed open animosity toward individuals who identify as transgender and required careful scrutiny under the law.

Dig deeper: Read Elizabeth Russell’s report about the Department of Veterans Affairs ending coverage for transgender interventions.