October 30, 2017 at 12:54 pm PST | by Karen Ocamb
Court halts Trump trans military ban, in part

Judge Colleen Kollar-Kotelly of the U.S. District Court, DC.

US District Court Judge Colleen Kollar-Kotelly put a hold on President Trump’s tweet-ordered ban on transgender military service, ruling in favor of the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates & Defenders (GLAD), who filed Doe v. Trump on August 9 seeking an immediate injunction on behalf of five transgender service members.

In her decision, Kollar-Kotelly said she believes that the Plaintiffs will win in proving that Trump’s Directive is unconstitutional. She says trans servicemembers should be considered a targeted class under “an intermediate level of heightened scrutiny,” as well as protected under gender. The Court therefore ruled that active duty trans servicemembers can continue to serve but the halt to the accessions policy pertaining to recruitment and promotion that Sec. of Defense Mattis put in place will also remain in effect until the constitutionality of the Directive is determined.

“The effect of the Court’s Order is to revert to the status quo with regard to accession and retention that existed before the issuance of the Presidential Memorandum—that is, the retention and accession policies established in the June 30, 2016 Directive-type Memorandum as modified by Secretary of Defense James Mattis on June 30, 2017. In all other respects, the Presidential Memorandum is not enjoined,” the judge wrote in her 76-page decision.

The judge also tackled the long-established argument that Courts traditionally give deference to the military. Yes, she writes, but “the Court is not powerless to assess whether the constitutional rights of America’s service members have been violated.” She also needled the Justice Department, which is expected to appeal. Under “an intermediate level of heightened scrutiny,” the government must provide an “exceedingly persuasive justification” for the ban—and she didn’t buy their arguments.

“[G]iven the deference owed to military personnel decisions, the Court has not based its conclusion solely on the speculative and overbroad nature of the President’s reasons,” the decision reads. “As far as the Court is aware at this preliminary stage, all of the reasons proffered by the President 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.

“A bare invocation of ‘national defense’ simply cannot defeat every motion for preliminary injunction that touches on the military,” the Court continues. “On the record before the Court, there is absolutely no support for the claim that the ongoing service of transgender people would have any negative effective on the military at all. In fact, there is considerable evidence that it is the discharge and banning of such individuals that would have such effects. The Court also notes that fifteen States have filed an amici brief indicating that they and their residents will be harmed by the Presidential Memorandum if it is not enjoined….Moreover, the injunction that will be issued will in no way prevent the government from conducting studies or gathering advice or recommendations on transgender service. The balance of equities and public interest accordingly weigh in favor of granting Plaintiffs’ motion.”

“This is a complete victory for our plaintiffs and all transgender service members, who are now once again able to serve on equal terms and without the threat of being discharged,” said Shannon Minter, NCLR’s Legal Director. “We are grateful to the court for recognizing the gravity of these issues and putting a stop to this dangerous policy, which has wreaked havoc in the lives of transgender service members and their families.”

“This court saw straight through the smokescreen the government tried to create to hide the bias and prejudice behind Trump’s change in military policy. This clear, powerful ruling confirms that there is no legitimate reason to exclude transgender people from military service,” said Jennifer Levi, Director of GLAD’s Transgender Rights Project. “Fighting discrimination isn’t easy, and to all the transgender members of the armed forces or those looking to join, I want to say thank you for your courage, not only in fighting for our country, but in fighting for the constitutional values of equality and justice.”

The Court did deny, however, an injunction against the ban on trans sex reassignment surgery. More news on that front is expected after a joint NCLR/GLAD news conference.

A Pentagon source says this was the expected outcome regarding the Retention and Accessions policy. The source also noted that this is just the first shoe to drop and is not the end of it.

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