Second Federal Judge Issues Order Blocking Trump’s Transgender Military Ban
For the second time in two months, a Federal Judge has ruled against the Trump Administration in a lawsuit challenging his effort to ban transgender soldiers from openly serving in the military:
A second federal judge has halted the Trump administration’s proposed transgender military ban, finding that active-duty service members are “already suffering harmful consequences” because of the president’s policy.
The ruling Tuesday by U.S. District Judge Marvin J. Garbis in a Maryland case comes just weeks after another judge in Washington blocked the administration’s proposal that would have stopped military recruitment of transgender men and women and possibly forced the dismissal of current service members, starting in March.
The preliminary injunction issued by the judge in Baltimore on Tuesday goes further than the earlier ruling by also preventing the administration from denying funding for sex-reassignment surgeries after the order takes effect.
In his 53-page order, Garbis said the transgender service members challenging the ban have “demonstrated that they are already suffering harmful consequences such as the cancellation and postponements of surgeries, the stigma of being set apart as inherently unfit, facing the prospect of discharge and inability to commission as an officer, the inability to move forward with long-term medical plans, and the threat to their prospects of obtaining long-term assignments.”
In July, President Trump surprised military leaders and members of Congress when he announced the proposal in a series of tweets. The challenge from six active-duty service members in Maryland was filed days after Trump issued a formal order reversing an Obama-era policy allowing transgender men and women to serve openly and to receive funding for sex-reassignment surgery.
Justice Department lawyers asked the court this month to dismiss the lawsuit because the policy is on hold pending a review by the Defense Department. No decisions have been made, government lawyers said, about whether to discharge active-duty service members solely because they are transgender. The military is continuing to provide transition-related medical care.
Garbis rejected the government’s argument that the challenge was premature.
“The only uncertainties are how, not if, the policy will be implemented and whether, in some future context, the president might be persuaded to change his mind and terminate the policies he is now putting into effect,” Garbis wrote.
In issuing the preliminary injunction, the judge found the challengers likely to prevail in asserting that the president’s order violates equal-protection guarantees in the Constitution as well as the rights of service members to medical care.
The judge agreed with the government that the courts should generally defer to the president and Congress on military affairs, but it found that “Trump’s tweets did not emerge from a policy review,” according to the opinion, which featured images of the president’s July tweets.
“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,” wrote Garbis, who was nominated to the bench by President George H.W. Bush
American Civil Liberties Union attorney Joshua Block, who is representing the service members, called the decision a “victory for transgender service members across the country.”
“We’re pleased that the courts have stepped in to ensure that trans service members are treated with the dignity and respect they deserve,” Block said.
Justice Department spokeswoman Lauren Ehrsam said in a statement, “We disagree with the court’s ruling and are currently evaluating the next steps.” The statement added: “None of the plaintiffs have established that they will be impacted by current policies on military service.”
As Derek Hawkins notes in The Washington Post, this was yet another case in which Trump’s tweets have proven to complicate things for Justice Department lawyers seeking to defend Administration policy:
The Trump administration has a credibility problem in the courtroom.
In one case after another involving White House policies, federal judges have questioned the professed motives of President Trump and his surrogates and have poked gaping holes in arguments by government lawyers. Their rulings are peppered with doubts about the administration’s intentions and not-so-subtle jabs at its legal strategy.
Put differently, Trump and his administration have struggled to convince judges hearing their cases that they can be taken at their word.
The latest and one of the most striking examples came Tuesday, when U.S. District Judge Marvin J. Garbis of Maryland blocked Trump’s proposed transgender military ban.
Trump announced the ban in a trio of tweets over the summer, saying he had decided on the move “after consultation with my Generals and military experts.”
But Garbis, a Republican appointee and veteran of the federal bench, said, essentially, that was nonsense.
The president’s tweets didn’t come from a policy review, the judge wrote, nor had the administration done anything to show that a ban would help military readiness or national security. If the policy were actually studied, he added, it probably wouldn’t survive.
In his unforgiving 53-page order, Garbis wrote that the administration had offered no justification for the policy change, which reversed the Obama administration’s decision to let transgender troops serve openly.
Garbis also noted that military officials, including Defense Secretary Jim Mattis, were caught off guard by the announcement, which he said “drew swift criticism from retired generals and admirals, senators, and more than 100 Members of Congress.”
If any “consultation” with military leaders did take place, Garbis seemed to say, it wasn’t worth much.
“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,” he wrote.
Indeed, the judge concluded, there were more compelling reasons to believe the plaintiffs, a group of transgender service members who contend the policy wasn’t driven by genuine military concerns. Given the “circumstances surrounding the President’s announcement and the departure from normal procedure,” Garbis wrote, the plaintiffs had a good chance of prevailing in the case.
As Hawkins notes, this isn’t the first time that the President’s tweets have come back to bite him in legal proceedings. The most notable example, of course, came in the court rulings from Federal Judges at both District Court and Court of Appeals level on the President’s Executive Orders barring travel from a select group of majority Muslim nations. Nearly all of those rulings have relied at least in part on things that the President has said i on Twitter and on the campaign trail and elsewhere, or on comments from advisers tasked with helping him formulate the policy. This has also happened in court rulings on Trump’s efforts to ban funding the so-called sanctuary cities and an order on religious liberty. In each case, the Judges found that the President’s public pronouncements on the policy and its justification indicated that the position that the Justice Department was taking was disingenuous at best, and in any case didn’t fully account for the true motivation by Administration policy. This is yet another example of how Trump’s Twitter habit is hurting him and hurting the implementation of Administration policy. As we’ve seen time and again, though, it is clear that nobody in the White House can control the President’s use of social media, so this is likely to continue for as long as Trump as still in office.
Yesterday’s ruling by Judge Garbis, who was appointed to his position by President George H.W. Bush, follows just under a month after a similar ruling by Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia. Judge Garbis’s ruling, however, went further than Judge Kollar-Kotelly’s order because she did not address the question of whether or not the government could be required to pay for the cost of necessary gender reassignment surgery. In that part of his ruling, Judge Garbis found that the proposed ban would have a negative impact on people such as the Plaintiffs who were attempting to schedule transition-related surgeries and would not be able to receive such surgery prior to the formal implementation of the policy in March of next year. As a result of this finding, he ruled, the Federal Government was causing them real harm even though it had not formally turned down the request to pay for the surgery due to the fact that the current state of President Trump’s order meant that they would unable to receive the surgery after that point.
This ruling also comes just about four months after President Trump announced on Twitter that he would was reversing the Obama Administration’s policy decision to allow transgender Americans to serve openly in the military, a policy change had been announced by the Obama Administration just a year earlier. In the initial period after Trump’s tweet, the Defense Department made it clear that the policy would not be changing immediately based solely on the President’s tweets, and that the Pentagon would await a formal order from the White House before announcing how it would proceed. Additionally, the Commandant of the U.S. Coast Guard stated that his branch of the service would continue to follow the Obama Era policy until they receive a formal order to the contrary and several reports in the media made it clear that the military leaders of the other branches of the military were skeptical of the wisdom of ruling, The immediate public reaction to the President’s announcement, meanwhile, was largely negative, with polling showing that most Americans opposed the President’s announced policy, but that clearly didn’t have much of an impact on the President’s decision making. Trump finally signed a formal order implementing the new policy in late August, but the order gave at least some latitude to the Defense Department to decide how to implement it. In response to that order, the Defense Department announced that a panel would be established in the wake of Trump’s order. That panel would review and discuss how to implement the new policy and what impact it should have on those service members who came out of the closet in reliance on the announced change in policy. While some insinuated that Mattis was defying Trump’s ban, it was clear that this was not the case. Finally, there were lawsuits filed against the ban both before and after the formal policy announcement from the White House alleging that the ban was unconstitutional and on the basis that several of the Plaintiffs had come forward in reliance on the Obama Administration policy change and that it would violate their rights to punish them for acting in reliance on that change.
From here, these cases will head to the appellate Court. In the case of Judge Kollar-Kotelly’s ruling, that would be the Court of Appeals for the District of Columbia, and in the case of Judge Garbis’s ruling, the appeal will be to the Fourth Circuit. At the very least, though, any ruling from either court is likely months away, and for the time being the injunctions issued by Judges Kollar-Kotlley and Garbis will stand and the implementation of the ban will be halted, although it’s likely that the Defense Department will continue to study how to implement it just in case those stays are lifted and it is caught flat-footed. In any case, this is a solid victory for transgender Americans for the time being. Whether it lasts is something only time can tell.
Here’s the opinion: