WASHINGTON — The Trump administration urged a federal appellate court in Washington on Tuesday to allow the U.S. military to implement a ban on transgender people serving, telling the judges the government plans to fight the issue to the Supreme Court in a separate case.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, after hearing oral arguments, gave no clear view of how it might rule as the Trump administration asks to move forward with an executive order that laid the groundwork for the ban.
A lower court had issued a scathing ruling that blocked the policy, saying the ban was “soaked in animus and dripping with pretext.” The D.C. Circuit last month paused that lower court order until it rules on the Trump administration appeal, in an order that also said it could reconsider that decision if the military took action that negatively affected transgender service members.
Justice Department attorney Jason Manion told the judges the policy targets people with a diagnosis of “gender dysphoria,” which is associated with clinical distress.
“Each of the policies here have drawn the same type of line. It’s a line that the Supreme Court allowed us to take in several years ago,” Manion argued.
Shannon Minter, an attorney for a group of prospective and current U.S. military servicemembers who are transgender, said if it was really about medical issues and medical concerns, the policy set up would not make any sense.
“There’s no other medical condition, no other, that shunts a person automatically into administrative separation,” Minter said. “For literally every other medical condition, you go through a medical review process.”
The case is part of a larger legal fight. At Tuesday’s arguments, Manion said the Justice Department would soon ask the Supreme Court to weigh in on a case out of the U.S. Court of Appeals for the 9th Circuit, which declined to lift a lower court ruling that blocked implementation of the executive order.
During the arguments Tuesday in the D.C. Circuit, Judge Neomi Rao, a Trump appointee, drew attention to the scope of the ruling, which she said applied “a universal injunction” on the policy.
“The Supreme Court has indicated in a number of cases that these injunctions go beyond the authority of the federal courts,” Rao said.
Minter said the policy is targeted toward transgender people as a group, and action from the court should reflect that.
“The nature of the harm inflicted on every single individual transgender person is a group-based harm,” Minter said, adding that they are being categorized “based on their membership in a group.”
The White House executive order at issue states the identity of a transgender person “conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life.”
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