Ninth Circuit frowns at military's reasons for banning transgender service members

(CN) — A Ninth Circuit Court of Appeals panel on Monday questioned why transgender service members aren’t fit to serve and should be banned under a policy prompted by a January executive order from President Donald Trump.

Deputy Associate Attorney General Abhishek Kambli argued before the three-judge panel in Portland, Oregon, that the policy is based on a medical diagnosis of gender dysphoria, which the government claims makes transgender soldiers unfit for service.

U.S. Circuit Judge Morgan Christen, a Barack Obama appointee, was quick to point out that the policy was considerably broader than this diagnosis.

And U.S. Circuit Judge Andrew Hurwitz, also an Obama appointee, noted that the president’s order — which said “adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle” — made it clear that it is aimed at removing transgender people from the military.

“Is the policy consistent with the president’s executive order,” Hurwitz asked the Justice Department lawyer, “to come up with a policy that removed all transgender people from the military because they’re dishonest, liars and not loyal. That is what the president of the United States said.”

“As I read this policy, there’s not a transgender person who would not be presumptively excluded,” the judge added.

The third judge on the panel, U.S. Circuit Judge Consuelo Callahan, a George W. Bush appointee, also wondered if there were any transgender people who didn’t suffer from gender dysphoria and could qualify for military service under the policy that Defense Secretary Pete Hegseth issued in February, as instructed by Trump’s executive order, to identify and separate out transgender soldiers.

And while Kambli sought to argue that there were “trans-identifying” individuals who do not suffer the clinical distress associated with gender dysphoria, Christen pointed out that the guidance for the military’s new policy goes beyond the actual diagnosis to include people who have a history of symptoms consistent with gender dysphoria.

The federal government is appealing the preliminary injunction against enforcing the policy that was issued in March by a trial judge in Tacoma, Washington, in a lawsuit brought by seven active duty, transgender service members — including a Navy pilot who has flown more than 60 combat missions — who claim that the policy violates their constitutional equal protection rights.

The U.S. Supreme Court stayed the injunction in May.

The appellate panel at Monday’s hearing also observed that the seven individual plaintiffs all served with distinction and that there was no reason to believe that their gender identification affected “unit cohesion” or otherwise undermined their ability to perform their duties.

“It still goes back to the idea that the military is owed deference on whether to carry out this policy as a general matter,” Kambli said. “These seven individual plaintiffs would not meet the criteria to continue military service based on this policy.”

The notion that the court should defer to the military’s professional judgment whether the presence of transgender service members — or as the Pentagon’s policy phrases it “individuals suffering from gender dysphoria” — disrupts the military’s efficiency didn’t gain much traction with the panel because Hegseth’s policy didn’t appear to be based on new evidence.

“Different administrations have gone different ways on this issue,” Christen said. “This time around, the policy was announced right away and without regard to the several years where people were allowed to serve openly in the military even though they were transgender.”

The judges also wondered whether the military could use the same line of reasoning to ban women from serving because of medical conditions unique to women that could create problems for their deployability.

Attorney Sasha Buchert argued for the transgender service members that the military’s policy discriminates against a group of people and not against a medical condition and should be enjoined universally.

“To qualify all transgender people as presumptively unfit to serve is discriminatory,” Buchert told the panel.

Hurwitz, however, noted that to prevail on a so-called facial challenge, according to which there’s not one individual to which the policy could apply under the Constitution, was a “tough mountain to climb.” As such, it might be easier to uphold the injunction only on behalf of the seven plaintiffs.

Callahan also observed that, after a federal judge enjoined the military’s policy in March, the Supreme Court has rejected the use of such nationwide injunctions barring extraordinary circumstances.

“CASA doesn’t bode well in your favor,” the judge said referring to the Supreme Court’s June 27 ruling that scoffed at three different trial judges issuing universal injunctions of Trump’s restrictions on birthright citizenship because they applied beyond the individual plaintiffs before each judge.

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