The federal judiciary does not understand what it means to be transgender. And its ignorance may allow the Trump administration to justify its ban on open transgender military service by pretending that it is not a ban at all.
On Friday, the U.S. Courts of Appeals for the District of Columbia Circuit lifted an injunction that had blocked the Pentagon from excluding transgender people from the armed forces. Its order has no immediate effect, since three other injunctions remain in place (for now). But the decision is an alarming reminder that many federal judges have, at best, a tenuous grasp on the reality of transgender life—and thus stand be to duped by the Trump administration’s mendacity.
The president first announced his trans ban via tweet in July 2017, without consulting the Pentagon, under pressure from social conservatives to reverse the Obama administration policy permitting open transgender service. By that point, the policy had been in effect for more than a year and had produced no negative consequences for the armed forces. Within months, four federal district courts froze Trump’s ban as a violation of due process and equal protection, citing its total lack of justification and discriminatory intent. The president quickly ordered then–Secretary of Defense James Mattis to convene a study group and make a “recommendation” about how best to implement the revised policy.
This process was plainly designed to provide a retroactive rationale for the ban that might hold up in court. After all, the military studied the issue for two years during the Obama administration and found that the anti-trans rule was harmful and unnecessary. And the Trump administration had failed to provide any real excuse for rejecting its conclusions, other than pure animus.
So leading anti-LGBTQ activists helped the Department of Defense produce a report that deployed anti-trans canards to rationalize the ban. As Slate reported in March, Vice President Mike Pence played a major role in creating this report, along with anti-trans extremists outside of the government like Ryan Anderson and Tony Perkins. Mattis adopted its findings and encouraged the president to bar transgender people from enlisting in the military and to discharge enlisted members who wish to transition. To prop up the ban’s legality, Mattis suggested that the president permit transgender troops who came out under the previous policy to continue serving. And, critically, he advised that transgender people be allowed to enlist and serve if they remain “in their biological sex.” Trump promptly implemented these recommendations.
The Department of Justice then asked the four federal district courts that had blocked the ban to lift their injunctions. Government lawyers argued that the “new” policy was distinct from Trump’s initial ban and rectified its constitutional flaws. Specifically, they claimed that the policy no longer targets transgender people but simply a subset of them—those who experience ongoing gender dysphoria, or “who require or have undergone gender transition.”
Last year, U.S. District Judge Colleen Kollar-Kotelly saw through these ostensible distinctions. She wrote, in an opinion declining to dissolve her earlier injunction, that the plan “effectively implements [a transgender] ban by targeting proxies of transgender status … and by requiring all service members to serve ‘in their biological sex.’ ” As she noted sharply: “By definition, transgender persons do not identify or live in accord with their biological sex, which means that the result of the Mattis Implementation Plan is that transgender individuals are generally not allowed to serve openly in the military.”
The DOJ appealed, and on Friday, the Trump administration received its first court victory since the start of litigation over the policy. In a brief and fairly narrow order, a panel of judges for the D.C. Circuit found that Kollar-Kotelly was wrong to rule “that the Mattis Plan was a blanket transgender ban.” Instead, it accepted the Trump administration’s arguments at face value, writing:
Plaintiffs contended that the Mattis Plan’s exclusion of transgender persons who have gender dysphoria or who are unwilling to serve in their biological sex constitutes a blanket ban, arguing this case as if all transgender individuals either (1) have gender dysphoria or (2) transition to their preferred gender. They characterized these as “essential” and “defining” aspects of being transgender … [W]e can find nothing in the record to support this definition of being transgender … [T]he panel of experts convened by Secretary Mattis observed that there are transgender persons who “have served, and are serving, with distinction under the standards for their biological sex.”
This passage demonstrates a fundamental misunderstanding of transgender existence. It is true that not all trans people must transition medically to resolve their dysphoria. But most do—and the ban still only affects transgender people. The Mattis policy puts the vast majority of trans Americans in a Catch-22. They may serve if they do not transition, but if they do not transition, they will likely suffer gender dysphoria. And if they suffer gender dysphoria, they cannot serve. It is a targeted attack on transgender service, no matter how it’s packaged.
We’ve seen this problem before. In 2003, Texas defended its sodomy ban by alleging that it was not an assault on gay people, merely a restriction on same-sex conduct. The Supreme Court rightly rejected this status versus conduct distinction, explaining that to forbid gay people from engaging in sexual activity is to “demean their existence.” In 2010, the court again rejected the argument that discrimination against same-sex intimacy is not discrimination against gay people. By way of example, the court wrote, not all Jews may wear yarmulkes, but a “tax on wearing yarmulkes is a tax on Jews.”
LGBTQ advocates spent years mounting a public education campaign to help judges understand why laws targeting same-sex relationships demean the dignity of gay people. Friday’s decision suggests that advocates must now teach the courts about transgender life and why the Mattis policy is an affront to their constitutional dignity. Shannon Minter, legal director of the National Center for Lesbian Rights—which represents the plaintiffs in this particular challenge—put the point to me this way:
The ruling today reflects a fundamental—and dangerous—misunderstanding of what it means to be transgender. Forcing a transgender person to suppress their identity in order to serve in the military is a ban, as every other court to consider this issue has understood. The court of appeal’s failure to grasp that underscores the reality that this is a new issue for many judges, just as it is for many people in the public more generally. Today’s ruling is a wakeup call that we must do more to show the courts and the public who transgender people are and, in particular, the critical importance for a transgender person of being able to transition and to live in accord with their gender identity.
Minter added that it is “perhaps not surprising that appellate judges are the least familiar with transgender people because, unlike the district courts, most of them have probably never decided a case involving a transgender plaintiff, much less had an opportunity to see and interact with transgender litigants in court.” Moreover, whereas most judges probably know at least one gay person, few may count an openly transgender person among their friends, families, and colleagues. This unfamiliarity makes it easier for courts to accept the Trump administration’s bad-faith word games.
Still, there may be a silver lining to Friday’s decision. While other nationwide injunctions are not affected by the ruling and remain in place to block implementation of Trump’s cruel and discriminatory policy, Kollar-Kotelly is now poised to hold a full bench trial over the ban, allowing LGBTQ advocates to mount a vigorous assault on the ban’s factual underpinnings. Much like the famous Proposition 8 trial, this courtroom clash will permit attorneys to debunk anti-LGBTQ fallacies—and, vitally, build a record proving that the current trans ban really is a trans ban. The D.C. Circuit complained that it could “find nothing in the record” to illustrate the cruelty and illogic of a policy that compels trans people to serve “in their biological sex.” Soon advocates will have an opportunity to make the case, in open court, that the Trump plan really does demean the existence of transgender Americans.