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Trump Turns to High Court on Trans Military Ban

Effort to sidestep lower courts as fed personnel website scrubs anti-bias language

Mara Keisling, executive director of the National Center for Transgender Equality, charged that Donald Trump’s latest gambit regarding his proposed trans military ban is yet another sign the president has “zero respect for this nation’s military or the rule of law.”
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In a holiday weekend effort to get around injunctions from four federal courts against President Donald Trump’s efforts to bar transgender military service, the administration is asking the Supreme Court to lift three of those injunctions while these separate challenges to the policy — which the president first announced in a series of July 2017 tweets — play out in the lower courts.

Because of the injunctions, a plan adopted by then Secretary of Defense Ash Carter in the final year of the Obama administration allowing for military enlistment by transgender Americans went into effect on January 1 of this year.

In a court filing on November 23, Solicitor General Noel Francisco argued, “The military has been forced to maintain that prior policy for nearly a year… [posing] too great a risk to military effectiveness and lethality.”

The four injunctions, however — from district courts in Washington, DC, Baltimore, Seattle, and Riverside, California, with several of those injunctions upheld by appeals courts — have found that the transgender plaintiffs are likely to ultimately succeed in their claims and have ordered trials, which are now in the discovery phase. The government was already appealing a discovery order from Seattle District Judge Marsha Pechman, which sought information on how the dictates of Trump’s original 2017 tweet, where he vaguely alluded to having consulted “my generals and military experts,” became formalized by a task force headed by Defense Secretary James Mattis.

Given the careful study of transgender military service by the Obama administration under Carter, the plaintiffs are seeking to learn the basis for the military now arguing their presence in the service would cause problems.

The appeal of Pechman’s discovery order went to the Ninth Circuit Court of Appeals, which Trump blasted bitterly earlier this week, complaining that an “Obama judge” from that circuit had blocked his effort to limit immigrants’ ability to lodge asylum claims and that the circuit itself was consistently hostile to his prerogatives. Trump’s attack sparked an unprecedented rebuke from Chief Justice John Roberts, whom the president slammed back in a tweet retort.

Responding to the solicitor general’s Friday filing, the National Center for Transgender Equality charged that the proposed Trump military ban, about which the government is resisting discovery efforts, is “based on junk science and baseless myths about the fitness of transgender people to serve in the armed forces.”

In a written statement, NCTE’s executive director, Mara Keisling, said, “This is yet another reckless move by a president with zero respect for this nation’s military or the rule of law. Coming the day after the president turned a Thanksgiving message to troops into a complaint about his own losses in federal court, it is clear the administration is growing ever more desperate to undermine the law and insert prejudice and hate into our armed forces. It’s a senseless move that can only serve to disrupt troops, their families, and the military itself.”

Peter Renn, an attorney at Lambda Legal, which is one of numerous LGBTQ litigation groups and transgender advocates challenging the Trump ban, said, in a written statement, “Today, the US Department of Justice announced its intent to short-circuit established practice, asking the US Supreme Court to review a preliminary district court ruling before the Ninth Circuit Court of Appeals has even had an opportunity to rule. This highly unusual step is wildly premature and inappropriate, both because there is no final judgment in the case, and because even the preliminary issue on appeal has not yet been decided. It seems the Trump administration can’t wait to discriminate. Yet again, the Trump administration flouts established norms and procedures.”

In a separate development in the Trump administra­tion’s escalating assault on the rights of trans Americans, the Office of Personnel Management has removed language from its website spelling out nondiscrimination protections for transgender federal employees. The OPM website previously included a “Gender Identity Guidance” that outlined respectful treatment of such government employees, on matters such as restrooms, name changes, appropriate language, and dress codes. Updated at some point this week, the website now has no mention of the word transgender and states that gender-specific job roles in the federal government should be assigned according to “biological sex.”

The website cites an October 2017 memo from Jeff Sessions’ Department of Justice arguing that gender identity is not covered under federal nondiscrimination employment law. Over the last two decades, most federal courts have ruled that Title VII of the 1964 Civil Rights Act does, in fact, protect employees from discrimination on the basis of their gender identity or expression — interpreted as discrimination based on sex.

The site, however, continues to include gender identity as a protected class from discrimination in hiring — in line with a 2014 executive order from President Barack Obama that explicitly bans discrimination against LGBTQ employees in the federal government. The Equal Employment Opportunity Commission (EEOC) has also repeatedly ruled that federal law protects transgender federal employees from discrimination.

Commenting on news of the changes to the OPM website, NCTE’s Keisling said, “All transgender workers should know this does not legalize discrimination and nobody can just fire them because of who they are. Instead, it’s a cowardly attempt to spread chaos and confusion throughout the federal government. The Trump administration is resorting to misinformation and distortion in an attempt to harm countless employees of the federal government, the nation’s largest employer.”

News of the OPM website changes was first reported by Zack Ford at ThinkProgress.org.

Updated 10:13 am, November 28, 2018
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