Ninth Circuit Appeals Panel Unconvinced by Arguments for Trans Military Ban
Appellate court judges don’t seem particularly impressed by the Department of Defense’s attempts to justify the trans military ban.
by Aly Gibbs
On Monday, a three-judge panel in Portland, Oregon, heard arguments from the government and the seven transgender service members suing them for blatant employment discrimination. The appeal is in regards to a nationwide injunction issued by a federal court in March that temporarily halted the ban (just one of many), though that injunction was stayed by the Supreme Court, whose conservative justices declared that the Pentagon is free to discriminate in employment and hiring practices without offering any explanation for why that’s allowable.
The ban, a sweeping prohibition on the continuance of trans service members’ employment, enlistment of trans Americans, and coverage of trans healthcare for service members past and present, was issued by Secretary of Defense Pete Hegseth in February after an Executive Order demanding the removal of trans service members went out shortly after Trump took office.
Deputy Associate Attorney General Abhishek Kambli, a member of the Federalist Society, argued on behalf of the government, claiming that the ban is based on a medical diagnosis of gender dysphoria, and thus is not a blanket ban on transgender people serving in the military. Obama appointee Judge Morgan Christen pointed out that the ban targets people who have undergone or plan to undergo gender-affirming care of any kind. Kambli countered that, theoretically, somebody who is “trans-identifying” could serve, so long as they had never taken any steps to acknowledge their identity.
This makes it quite clear what the Defense Department’s actual concern is. If a transgender citizen who has never taken steps to remedy their gender dysphoria can serve, and there is no significant side effect of the medicines and procedures that constitute trans healthcare, the government is explicitly stating that it’s comfortable returning to the Don’t Ask, Don’t Tell era of queer Americans suffering in silence.
Another Obama appointee, Judge Andrew Hurwitz, questioned whether or not the Defense Department can reasonably distance itself from the blatant animus against transgender people shown by Donald Trump and Pete Hegseth, noting that both men have made “repeated public comment expressing disdain” for trans service members. He asked, “Doesn’t that history of statements matter when assessing whether this was an act of professional judgment or one of bias?”
“The executive order is irrelevant. We focus solely on the policy,” was Kambli’s response.
The same day, The Human Rights Campaign Foundation and Lambda Legal released a press release regarding the case. Sasha Buchert, Senior Counsel at Lambda Legal, said, “Today we asked the Ninth Circuit to uphold the preliminary injunction the district court correctly had put in place for transgender service members who strengthen our nation's armed forces. Every day this discriminatory ban remains in effect, qualified patriots face the threat of being kicked out of the military simply because of who they are. The evidence is overwhelming that this policy is driven by animus rather than military necessity - there is no credible evidence that transgender service members harm military readiness, unit cohesion, or effectiveness. We are confident the court will see through this discriminatory ban and restore the injunction that should never have been lifted.”
Human Rights Campaign Foundation President Kelley Robinson said, “Transgender servicemembers serve their country valiantly, with the same commitment, the same adherence to military standards and the same love of country as any of their counterparts. This ban by the Trump administration, which has already stripped transgender servicemembers of their jobs, is cruel, unpatriotic, and compromises the unity and quality of our armed forces. This is animus, plain and simple — and we expect the Ninth Circuit will agree that these blatantly discriminatory policies have no place in our military. We urge the court to uphold the freedom our armed forces stand for and restore the injunction that allows those with the heart and bravery to serve to do so without being left behind or discarded.”
The Ninth Circuit Court of Appeals is expected to make a ruling on this case in the coming months, either to uphold the stop on the ban or to support the Supreme Court’s stay that allows the ban to continue. If the judges rule in the fed’s favor, the case will likely proceed to the Supreme Court, who aren’t friends to the trans community.
Aly Gibbs (She/They) is a trans writer who reports on news important to the queer community.
