Judge: Too Soon to Decide Suit on Transgender Military Ban

(CN) – A federal judge on Friday refused requests by the Trump administration and civil rights groups to put an early end to the challenge of a proposed ban on transgender people in the military, finding “there are undeniably factual disputes” that preclude summary judgment.

In attempt to thwart President Donald Trump’s executive order to ban transgender service members and Defense Secretary James Mattis’ proposed implementation of the order, two civil rights groups sued behalf of current and aspiring transgender military members. They say Trump made up his mind to implement the ban before research was conducted, and the ban is unconstitutional on its face.

Both parties moved for summary judgment, and on Friday U.S. District Judge Colleen Kollar-Kotelly put the brakes on both requests. She noted the government has “withheld information concerning the deliberation, study and review” of the plan the Pentagon devised to carry out Trump’s order, leading to “genuine disputes of material fact” that must be resolved before judgment can be issued.

Furthermore, Kollar-Kotelly said, questions of the “level of scrutiny the court must apply, and the degree of deference owed, are threshold questions that must be resolved before the court can assess the constitutionality of the challenged policy.”

Instead of summary judgment, Kollar-Kotelly granted the civil rights groups’ request to continue with discovery.

Despite the fact that one of defendants’ main defenses in this action is that their decisions regarding transgender military service are owed great deference because they are the product of reasoned deliberation, study and review by the military, defendants have withheld nearly all information concerning this alleged deliberation. This is not how civil litigation works,” Kollar-Kotelly wrote in the 15-page order. “Defendants cannot prevent plaintiffs from obtaining the facts about a disputed issue and then expect to be granted summary judgment on that issue.

“Because genuine disputes of material fact exist and plaintiffs are entitled to continue pursuing discovery of those facts, the court will not summarily adjudicate this case at this time.”

In 2016, the Obama administration overturned a longstanding policy that prohibited openly transgender people from joining the U.S. military. The new policy was set to take effect on Jan. 1, 2018.

In a series of tweets this past summer, however, Trump posited what seemed to be a blanket ban that once again prohibited transgender individuals from serving “in any capacity.”

Following the tweets, the president issued a formal memorandum last year to Mattis and the Department of Homeland Security, extending the prohibition of transgender military service members indefinitely and directing Mattis to develop an implementation plan.

“In my judgment, the previous administration failed to identify a sufficient basis to conclude that terminating the departments’ longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources,” Trump wrote in the memorandum, echoing a tweet in which he suggested the presence of transgender people in the military is “disruptive.” The plan would be based on extensive research, Trump said.

Mattis rolled out his implementation plan as promised in February 2018. The Pentagon claims the plan is not a blanket ban, but would require all service members to serve “in their biological sex” and disqualify people who have a history of gender dysphoria unless they have been “stable for 36 consecutive months in their biological sex” prior to entering the military. Potential members would also be disqualified if they have undergone gender transition.

Kollar-Kotelly noted in her order Friday the basis of these disqualifications specifically targets transgender individuals.

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