Constitution Daily

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Judge issues new ruling against military transgender ban

November 22, 2017 by Lyle Denniston

 

Criticizing President Trump for making a major policy shift by a tweet, a federal trial judge in Maryland became the second one in recent weeks to block the federal  government’s planned ban on transgender people from the nation’s military services.

U.S. District Judge Marvin J. Garbis of Baltimore not only cleared the way for transgender individuals now serving to remain in the ranks and for transgender recruits to enlist beginning next year, but he also ruled that the military may not refuse to pay for gender-altering surgery for service members who seek it.  The ruling in favor of funding for such surgery made the new ruling broader than a decision by a federal trial judge in Washington, D.C., three weeks ago.

Twice in Judge Garbis’s 53-page opinion, he ridiculed the President’s decision to announce the military transgender ban simply by posting messages on his Twitter account.  “A capricious, arbitrary, and unqualified tweet of new policy,” the judge wrote, “does not trump the methodical and systematic review by military stakeholders qualified to understand the ramifications of policy changes.”

The judge also said that “President Trump’s tweets did not emerge from a policy review, nor did the [implementing] presidential memorandum identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest.”

The “abrupt policy change,” the new opinion concluded, lacked “any justification” and ran counter to the views of military leaders about what policy should be toward transgender people in the military.   The Obama Administration had taken steps to end the military’s long-standing ban on service by transgender people, but the Trump Administration moved last summer to revive the prior ban.

The Maryland judge’s order against enforcement of the discharge mandate, the ban on enlistment, and the ban on funding for gender-altering surgery was in a preliminary form, keeping all facets of the policy shift on hold until the case develops further in the Baltimore court. Under President Trump’s orders, the discharge requirement was due to go into effect next March 23, the ban on new recruit enlistments was due to go into effect January 1, and the ban on military financing of surgery related to gender-transition was to have become effective next March 23.

Judge Garbis ruled that the active-duty and reserve personnel who filed the challenge were likely to prevail ultimately on their claim that the ban violates their constitutional right to be treated equally with others who serve or seek to serve in the military.  The judge did not issue a similar ruling on a claim by the challengers that the policy violates their constitutional right to be treated fairly in the development of policy on who can or cannot serve – a due process claim – but he declined to dismiss that point at this stage in the case.   The challengers can attempt to buttress that claim later.

Judge Garbis did dismiss a separate point made by the challengers, that the policy shift violated a federal law that guarantees proper medical care for those serving in the military.  He did so after concluding that they had not backed up that claim with specific evidence of a denial of care (separate from the ban on funding of gender-transition surgery).  He allowed that point to be pursued again later, with further evidence.

Because the Maryland ruling, together with the one issued at the end of October by the judge in Washington, D.C., have combined to block all of the ban on transgender individuals in the military, enforcement could begin only if the government were to win an appeal to higher courts.

The Administration has told the judge in the Washington case that it may appeal that ruling, but it has not yet done so.  The judge has refused an Administration plea to put further developments in that case on hold.

Later in the day Tuesday, the Administration formally notified the judge that it will be pursuing an appeal of the ruling, taking that case to the U.S. Court of Appeals for the District of Columbia Circuit.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.

 

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