Second Federal Judge Issues Order Blocking Trump’s Transgender Military Ban

For the second time in as many months, a Federal Court is blocking the Administration's ban on transgender troops in the military.

Trump 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:

Stone Et Al v. Trump Et Al Opinion by Doug Mataconis on Scribd

FILED UNDER: Donald Trump, Law and the Courts, Military Affairs, National Security, Politicians, US Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Daryl's other brother Darryl says:

    So.
    Much.
    Winning.




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  2. KM says:

    I have no idea how they ever thought this wasn’t how it would turn out. Trump BLATANTLY made this about discrimination all over Twitter so there’s absolutely no way a court can’t take his words into account. You can only bend the law so much before even the most sympathetic judge has to call your BS.

    If someone wants to serve this nation willingly, GTFO of the way and let them do it. This is only an issue because Trump made it one. Much like with SSM, if haters hadn’t pushed as far as they did, the courts wouldn’t have had to step in.




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  3. HarvardLaw92 says:

    @KM:

    This is, and always has been, about raising the temperature in certain Barcaloungers. It’s theater for the rage-a-holics.




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  4. Gideon Marx says:

    I completely side with the president. The American taxpayer has no business funding some guy’s change into a woman. Raises serious questions of battle readiness. I oppose any new transgender surgeries, but I am more open to the issue of recruiting transgender individuals. If someone has already completed all of their surgeries, and has what it takes to participate in the military, then I am not opposed to that at all. But I am opposed to using my money to change a man into a woman or a woman into a man. I find it repugnant and angers me very much. I’m sure I’m not alone.




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  5. HarvardLaw92 says:

    @Gideon Marx:

    The American taxpayer also has no business spending 10 times as much on funding erections. Erectile dysfunction raises serious medical questions questions about battle readiness.

    I oppose any new prescriptions for erectile dysfunction. If someone has already resolved their limp noodle problem, and has what it takes to participate in the military, then I am not opposed to allowing them to serve.

    But I am opposed to using my money to allow broke dick pogues to get a stiffy. I find it laughable and it angers me very much. I’m sure I’m not alone.

    (in other words, see how much of a bigoted moron you sound like?)

    Newsflash – taxes are not a la carte, and you should be thankful for that. G-d forbid you should find out the hard way how many people have a problem paying for tanks and nuclear missiles.

    In the meantime, suck it up, buttercup. You’ll survive.




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  6. barbintheboonies says:

    I could care less who wants to join the armed forces, but they need to focus on the job, and not expect any taxpayers to pay for their sex change. Save your money and pay for it before or after you join.




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  7. barbintheboonies says:

    @HarvardLaw92: The effing Obama care is expensive enough for us. So why are we forced to pay for this crap. Some of us are paying 800.00 a month for health care a month with high deductibles, but that is just ok with some. It used to be if you were poor you got less now the working class gets less than them. So call me a hater if you want I am so broke now I cannot give a shi%. I guess I just get screwed again come tax time paying the penalty for choosing food and shelter over Obama`s mess.




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  8. HarvardLaw92 says:

    @barbintheboonies:

    Unless I’m mistaken, you live in one of those delightful Midwestern states where the Republican legislatures decided to forego expanded Medicaid funding and subsidies (which would have had the federal government paying much of that $800 per month.

    You’ll need to take that up with them.




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  9. Lynn says:

    Personally, I’m a lot more concerned about US support of the Saudis in Yemen than I am about either sexual reassignment surgery or drugs for erectile dysfunction.

    That, and the fact that too many can’t afford medical care.




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  10. Gustopher says:

    @barbintheboonies: You should see what my employers pay each month or semi-decent coverage. I’ve been looking at COBRA for when I quit my job in a fit of rage (I may take a year off while trying to start my own company , and don’t trust the Republicans to not destroy the individual market, so I’ve been exploring health insurance options in a fit of rage).

    Health care costs are out of control. They have been for my entire life, I believe. I want a socialist healthcare model, but what can you do? I’d settle for a stable individual market that the Republicans aren’t trying to sabotage, but again, what can you do?

    After I hit my job in a fit of rage, I will likely just hang out and smoke pot for a few months before getting another job, rather than trying to start a company. Most businesses fail — I’m ok with that risk (2-5 years income). Less ok with the risk of medical bankruptcy.




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  11. JKB says:

    So the whole issue of transgenders in the military has been removed from Trump. He took action as CinC, based on the cost and readiness for duty during their contract. That was important for some voters. So now fifth column mischief in 2020 on the issue is impeded. But now, the matter has been usurped by “activist” judges. So now, the surgery cost and being unfit for full duty during recovery will come out, probably in the context of strained resources on medical care for deployable troops. And it is all owned by the judiciary, who are quick to interfere in traditional Presidential matters. And there is no indication that Trump really cared one way or the other since he’s not ideological, although his actions will again force the matter out of Obama’s arbitrary and easily overturned EOs to something more secure, one way or another.

    Bonus, is the real world experience that Democrats in the White House can act unilaterally to undermine military readiness and the judges will impede Republican presidents from rebuilding readiness. A definite campaign point for Republicans to argue the dangers of electing Democrats. Expect the 2020 race to have lots of reports on the cost and time unfit for duty vs length of contract data.




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  12. Mikey says:

    “Capricious, arbitrary, and unqualified…” The judge meant that to apply to Trump’s tweets, but it applies very well to Trump himself. There has never been a more capricious, or less qualified, person to hold the office in American history.

    I’m glad to see yet another of his attempts to pander to his bigoted base has gone down in flames.




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  13. Tyrell says:

    @JKB: It seems to me that this would be under the jurisdiction of the military court.
    This judge should certainly listen to the military Joint Chiefs of Staff and take their opinions into consideration.




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  14. CSK says:

    And in the mean time, President Mangolini on Twitter bids us all to be properly grateful to him this day for MAGA!




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  15. wr says:

    @Gideon Marx: “I find it repugnant and angers me very much. I’m sure I’m not alone.”

    Well, there are plenty of Americans who find it repugnant when black men date white women, and that angers them very much. And we don’t listen to them, either, because they are bigots who should be beneath our contempt.




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  16. barbintheboonies says:

    @Gustopher: I cannot for the life of me understand why health care has gone up so much. It used to be affordable for everyone. It just makes me sick that even if I get the insurance I will not be able to go to the doctors because of the deductible. Then I listen to my family members who faked disability and got on low income housing and can go to doctors for anything, at any time they feel the need. Maybe get some pain pills that they can sell, for extra cash. Yea I am bitter. I would not mind universal health care either as long as everyone gets an equal chance at it. We know it will not happen soon though. Whether we like it or not, the Dems and the Repubs do not care for any of us.




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  17. barbintheboonies says:

    @HarvardLaw92: No I live in Wa. State Liberal as they come.




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  18. HarvardLaw92 says:
  19. HarvardLaw92 says:

    OT, but Flynn’s lawyers have just advised Trump’s legal team that they can no longer discuss Mueller’s investigation with them / no more information sharing.

    What does this mean? He has cut a deal to cooperate, and I suspect that it’s a doozie. Stay tuned, same bat time, same bat channel 😀




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  20. Gustopher says:

    @barbintheboonies: Part of it is that emergency rooms cannot turn away anyone — they have to charge higher rates to everyone to cover their losses for those who cannot pay, which means that fewer people can pay, and the costs then spiral.

    The healthcare system has a lot of that, at all levels, but that one’s the easiest to explain and understand. And that is woefully simplified (how many ERs are in your area? Can you compare prices while you are bleeding?)

    The free market ends up hitting public policy in a way where neither works well.




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  21. barbintheboonies says:

    @Gustopher: The insurance I had, used to pay for things like mammograms, or colonoscopies, but after Obama care many of these insurance companies raised the rates so high. They no longer paid for preventive medicine. Deductibles were more than I can afford. I just gave up these procedures. As for those who get Obama care free, they still use the ER, because it`s free for them. My family makes too much money, but we cannot afford any of this. I would think any reasonable person would agree, life threatening care is more important than a sex change operation, or ED. I just don`t want to pay for the rich and the poor`s health care and go without myself. I think that is reasonable.




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  22. Daryl's other brother Daryll says:

    @JKB:
    As a supporter of Roy Moore…it’s laughable you should talk about activist judges.




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  23. Bob The Arqubusier says:

    @HarvardLaw92: The American taxpayer also has no business spending 10 times as much on funding erections. Erectile dysfunction raises serious medical questions questions about battle readiness.

    I oppose any new prescriptions for erectile dysfunction. If someone has already resolved their limp noodle problem, and has what it takes to participate in the military, then I am not opposed to allowing them to serve.

    But I am opposed to using my money to allow broke dick pogues to get a stiffy. I find it laughable and it angers me very much. I’m sure I’m not alone.

    You’ve made this point several times. It appears you have a real har…. er, burr under your saddle about this one. Any particular reason you are fixated on this?

    But let’s think about it for a moment. The military tends to skew towards the young and the healthy and the fit far more than the general populace. People with the medical issues that cause this problem tend to be medically discharged, or not admitted at all in the first place. So why would this be a problem?

    Here’s a theory. Perhaps many of these cases are the direct result of battlefield injuries. Land mines and IEDs are among the most common causes of injuries, and we have all seen the men (and women, but you’re obsessing on an exclusively male problem) who have lost limbs to these attacks. Could it be plausible that this obsession of yours is also a common (albeit far less visible and less publicized) result?

    It also wouldn’t be a disqualifying injury — in and of itself, it would not be grounds for a medical discharge. But the same wounding could also result in disqualifying injuries, so it’s entirely plausible that we have a large number of men (both active and medically discharged) with a direct service-related disability that you don’t want to get treatment, because you need your little rhetorical point to be taken away from you.

    Such wonderful priorities you have there, champ.




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  24. KM says:

    @Bob The Arqubusier :
    Same logic as denying women birth control as part of insurance or a sex change- why should we pay for people to &^%*? Sex and other’s money don’t seem to mix well in America. Let’s be honest: nobody has or will ever die from ED and its not necessarily to live. You may die from whatever *caused* the ED if it’s not treated separately and it might adversely affect your mental health but you’ll live with blue balls. So the question comes down to the same argument conservatives make against BC – you want to &^%*, do it on your own dime. It keeps getting brought up because it’s completely disingenuous to argue against BC and re-assignment treatment (both medical issues that are non-life-threatening but important to the overall health of the patient) but be OK with ED treatment since it’s the same damn thing only gender flipped.

    If you have ED because of a direct service-related disability, you are still asking the taxpayers to pay for your boner medication. If your logic is it’s necessary or just compensation for your service, how can you deny fellow service members their sex-related medication and treatments? Liberals don’t mind paying for any of this so really it’s only conservatives who have to justify why allowing half the troops to screw and screwing the other half out of their fair share is somehow fine. Personally, if you want to get shot at for your country, I think you should have all your medical bills paid… but then again, I actually support the troops, not just repeat it as a slogan.




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  25. Bob The Arqubusier says:

    @KM: Nice straw man there. Just be careful; they’re notoriously flammable, and tend to burn their builders.

    The percentage of “conservatives” who oppose birth control to the point of not wanting to pay for insurance that covers it is minuscule. And within that tiny subset, a vast predominance are institutions owned directly by the Catholic Church.

    The “service-related injury” I brought up was under the principle of “being made whole” from an injury that was a direct result of the service.

    And do you enjoy your little juvenile giggles when you use terms like “blue balls” and “boner medication?” Does it really reinforce your assertion that “I actually support the troops” when you use them as political footballs and make light of their impairments?

    But now that you’ve got your giggles out of the way, I’ll repeat a few questions I asked before, and don’t think I got answered.

    1) The average time for gender reassignment treatment runs about six months, during which time the service member is not fit for service. Does that time count towards their service commitment, or will their tour be extended to cover the amount of time they committed to serve?

    2) If a service member leaves the service before their commitment is up, will they be obligated to repay the costs (or portion of the costs) of their treatment? Graduates of service academies who leave early are often billed for the costs of their education.

    3) Transgendered individuals are on a lifetime regimen of artificial hormones and other medications. Assuring a constant supply under typical military conditions (field service, submarine service, remote bases in combat zones) would be problematic at best, and occasionally impossible. Would transgendered service members have to go without their treatments, or should they be excluded from service where their access to medications would be limited?

    If you’d rather not discuss it seriously and continue to giggle over “boner medication” for the troops you so fiercely support, feel free. I will decline to participate, however.




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  26. wr says:

    @Bob The Arqubusier: ” I will decline to participate, however.”

    Please.




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  27. An Interested Party says:

    Does that time count towards their service commitment, or will their tour be extended to cover the amount of time they committed to serve?

    extend the tour…

    If a service member leaves the service before their commitment is up, will they be obligated to repay the costs (or portion of the costs) of their treatment?

    yes…

    Would transgendered service members have to go without their treatments, or should they be excluded from service where their access to medications would be limited?

    Let them go without their treatments until it is possible for them to get what they need, and of course, as part of their medical treatment, all efforts should be made for them to have the medications they need when they need them…

    So, any other reasons why transgender folks shouldn’t serve? Well, apart from whatever icky feelings you might get…




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  28. Bob The Arqubusier says:

    @An Interested Party: Let them go without their treatments until it is possible for them to get what they need, and of course, as part of their medical treatment, all efforts should be made for them to have the medications they need when they need them…

    So, what other medical conditions that require ongoing treatment should not be a bar to military service? Diabetes? Epilepsy? Hemophilia?

    The purpose of the military is NOT to “look like America,” to be all-inclusive, to serve its members. It is to defend the nation and protect and advance our national interests. Its members are, ultimately, disposable if necessary.




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  29. Porkchop says:

    At least one of these court rulings was wrong (the one from Judge Marvin Garbis in Baltimore).

    Even if transgender people have the constitutional right to serve in the military (a dubious assumption), they don’t have the right to a taxpayer-financed sex change operation.

    The Constitution (unlike the civil-rights laws) doesn’t require accommodation of conditions, even sex-linked conditions such as pregnancy. The Supreme Court made that clear in Geduldig v. Aiello (1974). So even if transgender status is a protected condition under the constitution, there is no right to make the military pay for sex-reassignment surgery.

    For a fuller discussion of this, see this link: https://libertyunyielding.com/2017/11/25/ruling-favor-military-sex-changes-ignores-supreme-court-precedent/

    It also seems questionable to rule the constitution even requires the inclusion of transgender applicants at all, given how much discrimination the military is able to get away with due to the Supreme Court counseling deference to the government’s decisions regarding the military — such as the Supreme Court’s ruling upholding the male-only draft (which was just as discriminatory).

    The relevant appeals courts have upheld far more irrational military policies in the past (both the DC Circuit and Fourth Circuit, which will hear appeals of these rulings, upheld the military’s obsolete and archaic ban on gays in the military, which President Obama later belatedly repealed with Congressional acquiescence).




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  30. Tyrell says:

    @HarvardLaw92: That insurance commissioner has that wrong. The insurance companies are leaving because they are losing money. All those healthy young people that the success of the AHA was built on did not sign up. It has been mainly people with preconditions and low incomes. So the system is going broke. Young people don’t care much about health insurance and are not concerned about any mandate. Many are covered by their parent’s plans. Most states do not have the money to fund health plans other than for state employees.




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