US Defends Military Sex-Change Ban at DC Circuit

WASHINGTON (CN) – Defending new restrictions on transgender military service, attorneys for the government told the D.C. Circuit on Monday that there is nothing discriminatory about recognizing that gender dysphoria has been linked to depression and other disorders.

At oral arguments this morning, Justice Department attorney Brinton Lucas fired back with an analogy when U.S. Circuit Judge Thomas Griffith questioned why the military would turn away a transgender individual who is “combat ready.”

“The military has over 36,000 service members with PTSD, but applicants with PTSD are not allowed to join,” Lucas said.

“The investment in these service members outweighs the risk with respect to this population,” he added.

While Lucas called it reasonable to anticipate that fulfillment of military duties would be impaired by suicidal thoughts or other mental health issues that tend to accompany a gender-dysphoria diagnosis, GLAAD attorney Jennifer Levi told the court that the policy adopted in February by Defense Secretary James Mattis is inherently discriminatory.

The Mattis memo designates everyone who identifies with a gender different from their biological sex as ineligible for service, but there is an exception for transgender individuals so long as they are not diagnosed with gender dysphoria.

Lucas insisted that this language sets the policy apart from a blanket military ban on transgender troops, but Levi emphasized that gender identity is something “deep-seated,” not a condition that can be flipped like a switch.

Judge Griffith pushed back against the government’s argument as well.

“But isn’t the effect of the Mattis plan to work in a total ban on transgendered individuals because the Mattis plan requires that they act according to their biological sex?” Judge Griffiths asked. “Isn’t that a null set in itself? If one is a transgender individual, the manifestation is not acting in accordance with biological effect. No one can fit within the category you’ve described.”

In defending the policy, however, Lucas pointed to research compiled in a Rand report showing that 18 percent of transgender individuals said they had no plans to undergo gender transition.

Lucas said this subset did not necessarily suffer from gender dysphoria, effectively remaining eligible for service.

The lawyer tried to paint the government’s position as a simple one on rebuttal, saying that just like the rules barring religious discrimination in the military, the new policy requires everyone to meet the same standards.

“We don’t see the difference between religious identity and gender identity in military regulations,” he said.

Levi on the other hand argued that the government has begun playing a “word game with the court.”

“It’s a contradiction to suggest that there is an exception that allows transgender people to serve freely while they are suppressing the core characteristic of what it means to be transgender,” she said.

The lawyer pushed back as well when U.S. Circuit Judge Robert Wilkins opined about a possible “false consciousness” that creates a period of “uncertainty between ones biological sex and a different gender.”

“There are significant reasons why a person can’t embrace it when it doesn’t align with their sex,” Levi said. “Because of discrimination, because it is outside what we anticipate about people’s birth sexes.”

In addition to the gender dysphoria language, the Mattis memo specifies that any person who is seeking or has undergone gender-transition treatment is ineligible for service.

The Mattis memo followed a directive President Donald Trump issued last year on Twitter that barred transgender service because of what the president perceived as “tremendous medical cost and disruption.”

Led by current and aspiring transgender military members, the challengers of the Mattis memo appealed to the D.C. Circuit after U.S. District Judge Colleen Kollar-Kotelly refused in August to favor either side at summary judgment. 

The Ninth Circuit has held oral arguments as well this year on a separate challenge, and attorneys for the Department of Justice asked the U.S. Supreme Court last month to intervene without that input.

The Supreme Court did not respond to the government’s request.

U.S. Circuit Judge Stephen Williams rounded out the panel of judges at Monday’s hearing.

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