DC Circuit Backs Trump’s Military Sex-Change Policy

Equality March for Unity and Pride participants march past the White House in Washington on June 11, 2017. (AP Photo/Carolyn Kaster)

WASHINGTON (CN) – In a brief and unsigned order Thursday, the D.C. Circuit cleared the way for the Trump administration to institute a policy that a federal judge equated with a blanket ban on transgender military service.

Distinct from a short-lived 2017 policy by then-Defense Secretary Ash Carter, the guidelines here were adopted in February 2017 by Trump’s second defense secretary, James Mattis.

The Mattis policy, as it is described in the ruling, contains two key elements: excluding from military service transgender people who either have gender dysphoria or are otherwise unwilling to serve in their biological sex.

U.S. District Judge Colleen Kollar-Kotelly determied that this was a blanket ban, but the D.C. Circuit vacated her injunction following oral arguments on Dec. 10.

“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 barred under the military’s standards prior to the Carter policy to join and serve in the military,” the ruling states.

Siding with the government, the three-judge panel said they were persuaded that some transgender servicemembers might identify as transgender but not “seek to transition to their preferred gender,” and not all transgender individuals suffer from gender dysphoria. 

Citing the 1981 decision Rostker v. Goldberg, in which the U.S. Supreme Court upheld the policy requiring only men to sign up for the military draft, the D.C. Circuit also found no equal-protections violations in the Mattis policy. 

“While the executive and legislative branches remain ‘subject to the limitations’ of the Constitution, ‘the tests and limitations to be applied may differ because of the military context.’”

The panel also quoted the 1973 case Gilligan v. Morgan, where a state university brought in the National Guard to squelch a student protest: “Courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.”

Activists were quick to condemn the decision. 

“Today’s ruling is a devastating slap in the face to transgender service members who have proved their fitness to serve and their dedication to this country,” Shannon Minter, legal director of the National Center for Lesbian Rights, tweeted Thursday. 

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