A federal judge is placing injunctions on two critical aspects of President Trump’s ban on transgenders serving openly in the military, but a key supporter of Trump’s policy says the judge is jumping the gun since no has been harmed by the policy and appears to be sympathetic to the media’s perspective that this is a civil rights issue.
On Monday, Federal Judge Colleen Kollar-Kotelly placed an injunction on Trump’s reinstatement of the ban and also blocked any ban on recruitment of transgenders. However, Kollar-Kotelly did not block Trump’s order not to use taxpayer dollars to pay for gender reassignment surgery and related treatments.
Kollar-Kotelly is a Clinton nominee to the federal bench, but was also a Reagan nominee for the D.C Superior Court earlier in her career. She gained widespread notoriety years ago as the judge in the government’s prolonged antitrust suit against Microsoft. The case is Jane Doe v. Donald Trump, as multiple unnamed transgender service members are behind the suit.
But given that the Obama administration unilaterally ended the ban on transgenders serving in the military, does the law side with Trump in his efforts to put the ban back in place? Family Research Council Senior Fellow in Policy Studies Peter Sprigg thinks so.
“I certainly think that this is an executive branch decision and not one for the courts to interfere with,” said Sprigg.
“This was a policy decision on the part of the Obama administration to reverse the longstanding policy that excluded transgender persons from the military. It is a policy decision of the Trump administration to reverse that. This is really not a constitutional issue, although the judge tries to frame it that way,” said Sprigg.
Sprigg believes the sympathetic media coverage of LGBT issues is influencing judges like Kollar-Kotelly.
“I think that the judge has internalized the way that the media covers this, which is that it’s a civil rights issue. It’s a matter of discrimination. It’s a matter of irrational animus towards people because of who they are. They’re simply failing to look at the real issues,” said Sprigg.
So what are the real issues? First of all, Sprigg says no one has standing to challenge the ban yet.
“The presidential memorandum (issued in August) basically said, ‘We are going to have the Pentagon look at this and make plans for how to undo the Obama policy and to report back on those by March 23, 2018.
“At the moment, the practice of the military remains as it was after July of 2016 under the Obama administration. In other words, people who came out as transgender are serving as openly transgender service members in the military, right now are continuing to do so even following the president’s announcement and will continue to do so until March of next year,” said Sprigg.
Sprigg says there is also no grounds to contest the ban on recruitment yet.
“No one has ever been recruited into the military as a transgender person. That policy was supposed to begin on July 1 of this year. Secretary of Defense James Mattis had already postponed that policy by six months before the president announced his decision on the overall policy,” said Sprigg.
“The July 2016 status quo is still in place right now. Therefore, these plaintiffs don’t really have an injury they can point to,” said Sprigg.
Once the timetables play out, the debate will continue. The argument in favor of allowing transgenders to serve is that anyone who is willing to serve and can meet the requirements ought to be given the chance to serve.
Sprigg says there are three compelling reasons to bring back the ban.
“[It’s] not because of any sort of discrimination or animus towards them because of who they are. It is for very specific medical reasons, both because of mental health and physical health considerations.
“People who identify as transgender do suffer from a mental disorder that is known as gender dysphoria. That has always been a disqualifying condition from a mental health perspective,” said Sprigg, who says there are physical standards in play as well.
“People who have had sex reassignment surgery are disqualified from a physical health perspective, as is anyone who has some sort of abnormality or mutilation of the genitalia for any reason,” said Sprigg.
He also points out that the military refuses to deploy anyone undergoing specialized medical treatment, and hormone treatments associated with gender reassignment would render service members unable to be deployed.
Sprigg says the judge doesn’t seem to care about why the previous policy existed.
“Although she quoted the previous policy about the physical and mental health issues when she actually analyzed whether this policy was justified, she didn’t address those issues at all. For the most part, the media does not address those issues either,” said Sprigg.