Judge questions data Trump's Pentagon relied on to ban transgender troops
U.S. District Judge Ana Reyes said she expects to decide by next week whether to pause Trump's policy while it's being challenged in court by transgender servicemembers.
WASHINGTON − A federal judge deciding whether to pause Trump administration restrictions on transgender servicemembers chided the Defense Department on Wednesday for misrepresenting studies in an attempt to justify the ban.
“Do you agree that you can’t just pick and choose sentences from a study, right?” U.S. District Judge Ana Reyes asked the administration’s lawyers during a nearly five-hour hearing. Reyes is weighing whether to put the policy on hold while it's being challenged by transgender members of the military. She expects to decide by next week.
Reyes, who was equally blunt with the Defense Department lawyers about her concerns with their argument at a previous hearing, said the administration wants her to ignore “why someone would so misleadingly characterize a study other than to come to a preordained conclusion.”
When Reyes made similar criticisms about the lack of context for the military’s figures on how much was spent on medical services for transgender servicemembers, the government’s attorney pushed back on the judge's “level of second-guessing.”
Reyes, a 2023 appointee to the bench by former President Joe Biden, responded that she’d never seen “this level of derogatory language towards a group of people in an executive order and a policy.”
What does Trump's order do?
The executive order President Donald Trump signed soon after taking office 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.”
To implement Trump’s order, the Pentagon has barred transgender individuals from joining the military, stopped paying for some hormonal treatment and sex reassignment surgery and began removing transgender servicemembers from the ranks.
It's possible to get a waiver to remain in the military, but only for a servicemember who, according to Trump administration policy, “has never attempted to transition to any sex other than their sex" and who adheres to "standards associated with" their sex as defined by the administration.
The Justice Department argues the courts should defer to military leaders’ judgment about the cost-benefit analysis of accepting servicemembers with gender dysphoria, the psychological distress a person may experience when their assigned sex and gender identity don’t match.
Judge grills Justice Department attorneys about studies
But Reyes grilled the Justice Department attorneys about the studies the Pentagon cited, saying she found them unconvincing.
The fact that a 2021 study found 40% of transgender servicemembers were non-deployable at some point during a one-year period is meaningless, Reyes said, because there was no comparison with the deployment rate of all servicemembers.
The report also concluded that transgender servicemembers were deployed more than cisgender servicemembers diagnosed with depression, the judge noted.
“This is your main support,” she said. “This is, in fact, the main piece of study that you all have to say that we’re concerned about non-deployability rates for transgender troops.”
Justice Department says court should defer to Pentagon's judgment
Jason Manion, a Justice Department attorney, said that the 40% figure was relevant and Reyes is not supposed to second-guess the professional judgment of military leaders.
Reyes countered that the same studies were used by the last administration to make it easier for transgender people to serve. So which set of military leaders was she supposed to defer to? she asked.
Manion said the current leaders had the authority to make a “predictive judgment.”
“Under the case law, you defer to the military,” he said. “You do not reassess the evidence.”
How many servicemembers are affected?
The government has not said how many people it expects would be impacted by Trump's policy. Instead, the Justice Department has pointed to a 2016 Rand Corporation estimate that between 1,320 and 6,630 of the 1.3 million active-duty servicemembers were transgender.
The plaintiffs challenging the policy include an Army major who received a Bronze Star for service in Afghanistan, an Army captain who’d been invited to teach at West Point and a petty officer whose double mastectomy was abruptly canceled shortly before the surgeon was about to begin the procedure.
The Pentagon began accepting transgender troops in June 2016.
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.
Biden overturned Trump’s order during his first week in office. But Trump reversed Biden’s order and effectively imposed another ban on transgender servicemembers, prompting a group of members and recruits to file a lawsuit asking the court to block Trump's mandate.