IN HALTING TRANSGENDER BAN, JUDGES HINT U.S. HAS FOOL FOR CLIENT
A novice at governing, President Trump apparently didn’t consider there might be a right way and wrong way to try to reverse the Obama administration’s policy allowing transgender Americans to serve openly in the military.
Two federal judges have now weighed in to rule the path Trump chose – announcing a ban on transgender service members in a series of tweets, with shaky claims of harmed readiness and ignoring counsel of the Joint Chiefs of Staff -- almost certainly violated the constitutional rights of current members as well as prospective recruits.
As a result, Trump’s order to force transgender personnel from service next year after a fresh internal study of the issue from the Pentagon, and also to block the scheduled start of recruiting of qualified transgender applicants Jan. 1, are now halted unless the Trump administration can mount a successful appeal.
The separate court rulings came three weeks apart. Both shared stinging rebukes of the way Trump tried to impose the ban, and sharp critiques of arguments by Department of Justice attorneys defending Trump’s actions. Two more court decisions over blocking the ban are pending in other circuits.
The preliminary injunction granted Oct. 30 by Judge Colleen Kollar-Kotelly for the U.S. Federal District Court in the District of Columbia enjoins Trump and the Defense Department from enforcing “accession and retention directives” that Defense Secretary James Mattis issued in September to implement the formal “presidential memorandum” Trump signed in August, a month after his tweets.
On Nov. 21, U.S. District Judge Marvin J. Garbis in Maryland also issued a preliminary injunction against Trump’s plan to halt recruitment of transgender members and to discharge those currently serving. Garbis’ order also would prevent the military from denying funding for sex-reassignment surgeries.
Judge Kollar-Kotelly was nominated to the federal bench in 1997 by then-President Bill Clinton. Garbis was nominated in 1989 by George H.W. Bush. Neither judge spared criticism of Trump’s handling of a sensitive and complex issue with tweets that immediately began impacting the lives and livelihood of military members, some of whom served for decades and fought in recent wars.
"A capricious, arbitrary and unqualified tweet of new policy does not trump the methodical and systematic review by military stakeholders qualified to understand the ramifications of policy changes," Garbis wrote in his decision.
Judge Kollar-Kotelly earlier found “all of the reasons proffered by [Trump] for excluding transgender individuals from the military in this case were not merely unsupported but were actually contradicted by the studies, conclusions and judgment of the military itself.” She added that Trump and government attorneys “provide practically no explanation at all, let alone support, for their suggestion that the presence of transgender individuals may be harmful to ‘unit cohesion.’”
Later in the her 76-page decision, Kollar-Kotelly wrote the “discrimination in this case was certainly of an unusual character” given that senior military, after a lengthy review process, had determined that allowing transgender individuals to serve would not have adverse effects, so they could do so openly. Many came out to their commanding officers relying on that pronouncement, she wrote.
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