The Defense Department is continuing to abide by the other court orders that allow transgender men and women to enlist and serve, the Pentagon said Friday.
Even so, the five-page ruling was a blow to the civil rights and gay rights organizations challenging the policy nationwide. In reversing a lower-court ruling, the appeals court wrote, “the District Court made an erroneous finding that the [administration’s policy] was the equivalent of a blanket ban on transgender service.”
The appeals court order came after oral argument last month before Judges Thomas B. Griffith, Robert L. Wilkins and Stephen F. Williams.
The court noted that its order was not a final ruling on the merits of the challenge, but that judges must give deference to military leaders when it comes to policy decisions about standards for service.
Attorney Jennifer Levi, director of GLAD’s transgender rights project, said the decision is “based on the absurd idea that forcing transgender people to suppress who they are in order to serve is not a ban. It ignores the reality of transgender people’s lives, with devastating consequences, and rests on a complete failure to understand who transgender people are.” GLAD is an acronym for GLBTQ Legal Advocates and Defenders.
President Trump announced a sweeping ban on transgender people’s military service via Twitter in July 2017, citing what he viewed as the “tremendous medical costs and disruption.” 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 then-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 birth gender and who are seeking to transition. Mattis’s 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 birth gender.
The order Friday said the lower-court erred by not giving sufficient weight to the administration’s effort to revise its policy in response to the initial court ruling. The appeals court specifically mentioned the creation of a panel of military and medical experts for input.
“It was clear error to say there was no significant change,” on the administration’s part, the appeals court said.
“The government took substantial steps to cure the procedural deficiencies the court identified,” according to the order. “Although the Mattis Plan continues to bar many transgender persons from joining or serving in the military, the record indicates that the plan allows some transgender persons” previously barred to join and serve.
The policy is not a “blanket ban,” the court concluded, because “not all transgender persons seek to transition to their preferred gender or have gender dysphoria.”
Shannon Minter, legal director of the National Center for Lesbian Rights, called the decision “cursory and misinformed” and said it “rests on the utter fiction that this ban is not a ban. Every other court has immediately understood that when you say you can serve only if you serve in your birth sex, that is a ban. It is dangerous and irresponsible.”
Pentagon spokeswoman Jessica Maxwell said Friday the department would continue to “press our case in the courts.”
“As always, we treat all transgender persons with respect and dignity,” she said in a statement. “It is critical that the Department be permitted to formulate personnel policies that it determines are necessary to ensure the most lethal and combat effective fighting force in the world.”
The administration has separately asked the Supreme Court to intervene to allow the government to have the policy take effect. The high court has not yet acted on the administration’s request.
Paul Sonne contributed to this report.