The exchange in Washington came during oral argument at the U.S. Court of Appeals for the District of Columbia Circuit and after four lower-court judges have temporarily blocked the restrictions in challenges from civil rights and gay rights organizations. Thousands of transgender troops have continued to serve and enlist.
There were parallels in the Trump administration’s argument Monday with those made in support of the president’s ban on travelers to the United States from certain Muslim-majority nations. Trump had initially pledged a “total and complete shutdown of Muslims entering the United States.”
On the transgender service ban, Trump announced the prohibition via Twitter in July 2017 and cited what he viewed as the “tremendous medical costs and disruption” transgender military service would cause. The administration’s order reversed President Barack Obama’s policy of allowing transgender men and women to serve openly and receive funding for sex-reassignment surgery.
Attorneys for active-duty service members went to court to block the policy shift, which could subject current transgender service members to discharge and deny them certain medical care.
The court rulings were met with another policy revision this year from Secretary of Defense Jim Mattis, who issued a plan to bar men and women from the military who identify with a gender different from their biological sex and who are seeking to undergo the medical transition process. The new plan makes exceptions, for instance, for about 900 transgender individuals who are already serving openly and for others who would serve in accordance with their biological sex.
The Justice Department has tried to short-circuit the appeals process by asking the Supreme Court to intervene and rule on the issue this term, but the high court has not yet acted.
The dispute at the D.C. Circuit on Monday centered in part on whether Mattis’s revised policy is substantially different from the president’s initial order. The appeal by the government contends a lower-court judge was wrong when she said she could find no evidence transgender troops would harm the military and put Mattis’s proposal on hold nationally while the administration continued its legal fight.
Griffith suggested the government’s requirement that transgender troops serve in accordance with their biological sex would force a person to suppress their nature and what it means to be transgender. “Isn’t that a contradiction in itself?” Griffith asked. He suggested that “no one can fit into the category you describe.”
Justice Department attorney Brinton Lucas emphasized that a person’s transgender status alone was not disqualifying and noted that a subset of transgender individuals have no interest in transitioning.
That argument was picked up by Judge Stephen F. Williams, who repeatedly referred to transgender individuals who “do not wish to transition,” seeming to make the point that the administration’s policy is not a complete ban.
“The record in this case is against you,” Williams told the attorney representing the transgender troops, Jennifer L. Levi.
Levi disagreed. She told the judge that a person’s gender identity is “deep-seated” and that there are significant reasons, including concerns about discrimination, that would make a person reluctant to transition.
The revised policy still is “rooted in discrimination against an entire group,” said Levi, who led the team from GLBTQ Legal Advocates & Defenders (GLAD) and the National Center for Lesbian Rights.
The court discussion had echoes of arguments over the travel ban and its makeovers.
The administration revised its initial sweeping travel ban after a “worldwide review” and lower courts struck down each of three iterations of the president’s policy. In June, the Supreme Court upheld the president’s power to control entry into the United States.
At the D.C. Circuit on Monday, the government’s lawyer said the new version of the policy restricting transgender military service was crafted based on the military’s professional judgment and after extensive review. Lucas, of the Justice Department, urged the court to defer to the judgment of the military and said the situation was “no different than the travel ban case.”
Griffith said the revised version of the travel ban included “many, many differences.” The judge added, “You haven’t been able to identify so many.”
Judge Robert L. Wilkins also seemed skeptical the recast rule on troops had changed much other than its provision allowing current transgender troops already serving openly to remain.
“Other than the grandfather clause, what’s the difference?” he asked.
Attorneys for the transgender service members said the revised plan still discriminates because it continues to apply different standards to a group of troops because of gender identity, rather than considering an individual’s fitness to serve.
Top military leaders told Congress in April they had seen no evidence transgender personnel serving openly had presented a problem for unit cohesion or military readiness.
A long list of retired military officers, former national security officials and military historians have filed briefs in support of allowing transgender troops. The former officials reject the government’s argument that the policy arose from the type of military judgment to which courts should defer. Trump did not consult with military leaders before announcing the initial ban on Twitter, and they say the subsequent order is no different.
The appeal comes after U.S. District Judge Colleen Kollar-Kotelly repeatedly rejected the government’s requests to lift her initial injunction, finding “absolutely no support for the claim that the ongoing service of transgender people would have any negative effect on the military at all.”
In August, the judge acknowledged the plan from Mattis is “more nuanced” but found a similarly discriminatory effect.
The Mattis plan “still accomplishes an extremely broad prohibition on military service by transgender individuals that appears to be divorced from any transgender individual’s actual ability to serve,” Kollar-Kotelly wrote.