The Trump administration’s ban on transgender people serving openly in the military is an “eminently reasonable policy reflecting the military’s best judgment,” the administration told the D.C. Circuit Friday (Sept. 21). The administration wants the court to undo a nationwide injunction that has blocked the policy from taking effect.
In its opening brief in Doe 2 v. Trump, the government said the injunction issued by Judge Colleen Kollar-Kotelly of D.C. district court improperly infringes on the decision-making of military leaders. Leaving the injunction in place and allowing trans people to serve openly “threatens a serious harm to the national defense,” the government added.
The government’s brief also argues that Kollar-Kotelly’s injunction is obsolete because it was initially entered in response to an order from President Trump in August 2017—an order that has since been replaced by a new, arguably more nuanced Department of Defense policy on trans service members.
Lawyers for the 10 individuals challenging the policy are scheduled to file a response brief Oct. 22. An oral argument has not yet been scheduled.
In 2016, under President Obama, the military announced that trans people would, for the first time, be allowed to enlist and serve openly. In July 2017, in a series of tweets that stunned even senior military officials, President Trump abruptly announced that he would revoke the Obama-era policy and bar trans people from serving in any capacity. Trump followed up his tweets with a memo in August 2017 formalizing his announcement.
Current and aspiring trans service members challenged the Trump ban in court, arguing that it was unconstitutional discrimination. In October 2017, Kollar-Kotelly issued an injunction stopping the ban from taking effect, and several other federal judges around the country issued similar injunctions.
Then, in March 2018, Secretary of Defense James Mattis announced a new policy based on a series of meetings with senior military officials. The Mattis policy purports not to be a blanket ban on trans service members. While it does not exclude individuals on the basis of transgender status per se, it largely disqualifies people who have a history of gender dysphoria or who have undergone a gender transition. And to the extent the Mattis policy allows anyone who identifies as trans to serve in the military, those people are required to serve “in their biological sex.”
Kollar-Kotelly concluded that the Mattis policy was effectively a further implementation of Trump’s summer 2017 directives because, at bottom, “it prevents service by transgender individuals.” Based on that conclusion, she denied the government’s request to dissolve her injunction and made clear that the injunction applies to the Mattis policy.
That brings the case to the D.C. Circuit, which granted an expedited briefing schedule at the government’s request. Notably, the government’s opening brief Friday goes out of its way to disclaim Trump’s notorious tweets and his August 2017 memo declaring a blanket ban. The Mattis policy, the government argues, is “markedly different in both process and substance” from Trump’s initial directives.
Yet the brief strongly defends the baseline assumption that enlisting people with alternative gender identities poses a serious risk to the military. The reasons the government invokes to justify this assumption range from “higher rates of psychiatric hospitalization and suicidal behavior” among people with gender dysphoria to “difficulties associated with adjusting uniform and grooming standards.”
The D.C. Circuit panel that will decide the merits of the case has not yet been announced. Here is the government’s full opening brief:
