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Trump trans troop ban sets stage for court battle

Issued: 201

President Trump's order late Friday that bans transgender individuals from serving in the armed forces except under "limited circumstances" sets the stage for a legal battle and an eventual Supreme Court ruling on whether the government can discriminate against people because of their gender status.

The White House order follows through on Trump's promise to reverse an Obama-era policy that allowed transgender troops to serve openly for the first time.

Individuals with a history or diagnosis of gender dysphoria — that is, people who identify as being a gender other than what they were assigned at birth — are generally ineligible for military service, the new order says, arguing that they "present considerable risk to military effectiveness and lethality."

The new ban will apply to transgender individuals who require substantial medical treatment, including medication and surgery.

The policy shift, announced late on a Friday evening, hours after Trump had left for a weekend in Florida, is the latest twist in a politically fraught controversy that began unexpectedly last summer when he called, in a tweet, for banning transgender troops, catching the Pentagon off guard.

The new order bars the Pentagon from enlisting recruits who have undergone gender transition treatment and could require kicking out some active-duty troops. However, the order gives Defense Secretary James N. Mattis leeway to retain those who have served openly since doing so was authorized.

Current transgender service members could remain in the armed forces if they have been "stable for 36 consecutive months in their biological sex" before joining the military and are able to deploy overseas, according to a memo by Mattis outlining the new policy released Friday.

Service members diagnosed with gender dysphoria after joining the military could remain if they do not undergo gender reassignment, the memo said. Troops diagnosed while the Obama policy was in effect "may continue to serve in their preferred gender" and to receive treatment.

Transgender individuals without a history or diagnosis of gender dysphoria are free to serve, it said.

Administration officials say the order creates an objective standard for prohibiting transgender individuals from serving — a contention certain to be tested in court.

However, the order will have no immediate impact, lawyers said, because four federal district judges issued nationwide orders last year that blocked Trump's original, more far-reaching proposal from taking effect.

In December, two U.S. appeals courts — in Washington, D.C., and Virginia — refused emergency requests from administration lawyers to lift lower court orders and maintain an enlistment ban.

"It must be remembered," the U.S. Court of Appeals for the District of Columbia Circuit said, that the transgender individuals who went to court seek "to serve their nation with honor and dignity, volunteering to face extreme hardships, to endure lengthy deployments and separation from family and friends and to willingly make the ultimate sacrifice of their lives if necessary."

The Supreme Court has not ruled on the issue of transgender rights. In its only case on the issue, in 2016, the justices in a brief order set aside a lower court's ruling that would have required a Virginia high school to allow a transgender boy to use the boys' restroom.

Administration lawyers argue that the courts must give special deference to the military. They say the Pentagon's leaders and military commanders are best suited to decide who can serve.

But advocates for transgender rights say the White House policy discriminates against all transgender persons without regard to their ability to serve.

The new order "categorically bans transgender people from service, with no legitimate basis," said Jennifer Levi, who directs the transgender rights project for Gay and Lesbian Advocates and Defenders (GLAD) in Boston. "This policy deems transgender people unfit for service. It's basically an absolute ban. We will continue to challenge this because there is no military justification for it. And I expect ultimately this will be resolved in the U.S. Supreme Court."

Shannon Minter, legal director for the National Center for Lesbian Rights in San Francisco, called the new policy "exactly the discriminatory, categorical ban that four federal courts have already barred from going forward."

The Pentagon keeps no figures on transgender personnel. Outside groups estimate there are 1,300 to 15,000 transgender troops in the military, which has an active-duty force of about 1.3 million.


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