'Biologically inaccurate': Judge blasts Trump policy to ban transgender people from the military

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WASHINGTON – During a contentious hearing Tuesday, a federal judge peppered Justice Department lawyers with hours of questions about how they justified President Donald Trump’s executive order calling for a ban on transgender troops joining the military.

U.S. District Judge Ana Reyes said she believed there were more than two sexes and asked Justice Department lawyers for additional legal arguments with biological findings that show there are just two. She voiced skepticism that adding pronouns to email signature lines hurt military readiness. And Reyes asked how the Pentagon could avoid banning transgender troops under Trump's order that said the "adoption of a gender identity inconsistent with an individual's sex conflicts with a soldier's commitment to an honorable, truthful, and disciplined lifestyle."

Jason Lynch, a department lawyer who defended the order, said it wouldn't necessarily lead to a complete ban on transgender troops. But Reyes said it looked like it would.

“He would say, ‘Of course it is,’” Reyes said of Trump. “Because he calls it a transgender ban because all the language in it is indicative if not requires a transgender ban.”

Under an executive order on Jan. 27, Trump called on Defense Secretary Pete Hegseth to develop guidance for military service within 30 days and medical standards within 60 days.

Reyes said she wouldn’t rule on a possible injunction against the order before the 30-day deadline next week but would wait to see what policy the Pentagon develops. But she said administration officials agreed not to change the treatment of transgender troops during that period. She also described Trump's order as "biologically inaccurate."

Lawyers who represented the troops from the National Center for Lesbian Rights and GLBTQ Legal Advocates and Defenders were asked almost no questions during the first three hours of the hearing before Reyes. Reyes got their agreement that the military mission can’t be diluted by transgender troops, and must be mentally and physically fit to live in austere conditions.

The hearing came as a dwindling majority supports transgender people serving in the military. Nearly 6 in 10 Americans support transgender service members, according to Gallup poll results released last week. But the 58% figure reflects a gradual decline since 2019, when 71% of Americans were in favor. In 2021, the figure was 66%.

Gender politics: Student asks Supreme Court to say he can wear T-shirt saying 'There are only two genders'

How long have openly transgender troops served in the military?

The Pentagon began accepting transgender troops in June 2016. The change came after a yearlong study and a Rand Corp. report on 18 other countries that allow transgender service found it would have no adverse impact on unit cohesion, operational effectiveness or readiness.

Defense Secretary Ash Carter said the military would be best served when transgender individuals “can no longer be discharged or otherwise separated from the military just for being transgender.”

Trump banned transgender service during his first term. Judges in four lawsuits initially blocked his order until the Supreme Court cleared the way for a revised policy in January 2019, which barred transgender people from enlisting, participating in Reserve Officers' Training Corps or attending military academies.

Former President Joe Biden overturned Trump’s order during his first week in office. But Trump reversed Biden’s order and imposed another order. A group of service members and recruits filed a lawsuit asking Reyes to block Trump's mandate.

“This is a stark reversal of military policy,” the lawsuit says. Transgender people "will be discharged from service, lose their means of supporting themselves and their families, and stripped of the honor, status, and benefits associated with uniformed service to their country.”

Lynch, the Justice Department lawyer who defended the order, said there was no evidence the Pentagon changed its policy during the first Trump administration because an appeals court blocked the initial version. But Reyes said the military changed its policy after courts blocked it, even if Lynch wouldn't acknowledge it was because of the courts.

“You and I are just going to have a fundamental disagreement about the sway of courts in our society," Reyes said.

After one heated exchange with joking asides about whether they were sick of each other, Reyes commended Lynch for being well prepared and doing an excellent job in the litigation.

Defense secretaries set policies for service

Lynch argued that defense secretaries ultimately set policy for who serves in the military and they can disagree about the standards to impose.

For example, the Pentagon sets numerous conditions on serving, including for heart conditions such as valve replacement or having a pacemaker, or for neurological conditions and schizophrenia.

For transgender troops, Lynch said the military has paused recruitment because of uncertainty about what the new rules will be. But he said the military has not yet begun removing transgender troops.

“There has been some pausing, yes,” Lynch said.

Reyes said the pauses hinted at an outright ban to come. But Lynch said pausing hiring doesn’t provide evidence of what the ultimate policy will be.

“Who knows what could happen, right?” Reyes said. “It might be like transgender-person-palooza under the policies.”

“I’m not sure I would put it that way, your honor,” Lynch replied.

Reyes ordered more legal arguments about biology

Reyes noted that a second Trump executive order stated that it is national policy to recognize two sexes: male and female. She said this would contribute to the military executive order because of a prohibition against males or females sharing sleeping, changing or bathing facilities of the other sex.

But Reyes said not every person has an XX or XY chromosome at birth. She said there are 30 different examples of intersex people, such as those with XXX chromosomes or ambiguous genitalia.

“It is incorrect as a biological matter,” Reyes said of Trump’s order. “You understand that, right?”

Lynch didn’t agree and said he wasn’t prepared to argue about biology.

“I don’t understand that to be incorrect,” Lynch said of Trump’s order.

Reyes asked for more legal filings about the biology behind their arguments.

Reyes questions whether pronouns hurt military readiness

Reyes also questioned why the administration prohibited the use of pronouns in email signature lines.

She invited Lynch to find a military officer who would testify in person that pronouns led to less preparedness.

“It is frankly ridiculous,” Reyes said. “I will be the first to get you a box of cigars,” Reyes told Lynch, if he found an officer to testify.

Reyes critiques, mocks personal attacks before hearing

Reyes opened the hearing with a three-minute speech against those who had criticized her on social media and voicemail over her refusal in an unrelated case Friday to temporarily block Trump’s firing of inspectors general. She said she usually shrugs off criticism but wanted to assure lawyers Tuesday that she could handle the case on transgender service members.

Reyes said a voicemail was left at her chambers that said, “Judge Reyes is amazing.” She said she shouldn’t lie, that she appreciated a compliment. But the caller proceeded to call her an "amazing fascist who cannot read because English was her second language” and ended by saying, “She belongs in a housedress, not a robe.”

Reyes – who was born in Uruguay, grew up in Kentucky, and was appointed to the bench by former President Joe Biden in 2023 – assured lawyers at the hearing on Tuesday that she has “been able to read for about a year now.” In fairness, she said her pet golden retriever Scout sometimes helps “with some of the longer words.”

Reyes also disputed that she ended the hearing Friday because she had a “hot Valentine’s date to get to.”

“If only,” Reyes said. “It’s not the case. If any of you are concerned, rest assured I do not have any dates planned for this week or the foreseeable future.”

Who is fighting the ban on transgender troops?

Participants in the lawsuit are:

• 2nd Lt. Nicolas Talbott, a 31-year-old transgender man who has served for a year in an Army Reserve unit in Pennsylvania.
• Maj. Erica Vandal, a 36-year-old transgender woman stationed in New York who has served nearly 14 years in the Army. She was awarded a Bronze Star for her deployment to Afghanistan.
• Sgt. 1st Class Kate Cole, a 34-year-old transgender woman stationed in California who has served 17 years in the Army.
• Capt. Gordon Herrero, a 34-year-old transgender man stationed in California who has served nine years in the Army.
• Ensign Dany Danridge, a 30-year-old transgender man enrolled in flight training in Florida who has served 12 years in the Navy.
• Senior Master Sgt. Jamie Hash, a 37-year-old transgender woman assigned to the Pentagon who has served 13 years in the Air Force.

• Koda Nature, a 23-year-old transgender man from Texas who is working with recruiters to enlist.
• Cael Neary, a 30-year-old transgender man from Wisconsin who is working with recruiters to enlist.

'In a foxhole'

Reyes noted the six the active-duty troops who filed the lawsuit had served a combined 60 years in the military, earned 50 commendations and were deemed physically and mentally fit to serve.

“If you were in a foxhole, you wouldn’t care about these individuals’ gender ideology, right?” Reyes asked.

Lynch said he didn’t want to testify as a witness, but to argue the government’s case. But he agreed that if he were in battle, he would prefer to serve with experienced troops who received commendations to those who hadn’t.

“If I were in a foxhole,'' Lynch said, "I doubt that gender identity would be a primary concern."