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WASHINGTON (CN) — A federal judge expressed doubt on Wednesday that the Trump administration’s apparent ban on transgender people serving in the military could be justified as necessary to improve military readiness.
U.S. District Judge Ana Reyes, a Joe Biden appointee, expressed difficulty separating the order — which would no longer recognize trans service members by their expressed gender identity — from President Donald Trump’s other executive actions targeting trans people in an apparent effort to erase them from society.
Reyes heard arguments starting on Tuesday, where she ultimately agreed with Justice Department attorney Jason Lynch to hold any opinion until Secretary of Defense Pete Hegseth issues guidance enacting Trump’s order, expected as early as Feb. 26.
The Jan. 27 executive order set a timeline for Hegseth to craft the new policy within 30 days and implement it within 60. Until any policy is in place, Lynch said, the executive order simply paused actions related to trans individuals pending review.
A group of seven active-duty transgender service members sued on Jan. 28 to challenge Trump’s executive order “Prioritizing Military Excellence and Readiness,” arguing that it would ultimately bar transgender people from enlisting or continuing their military service.
The plaintiffs collectively served over 60 years in the military. One plaintiff, Major Erica Vandal, received a Bronze Star for distinguished service while under fire among other commendations for her service.
Lynch did not dispute the plaintiffs’ fitness or question their service but argued that the executive order’s instruction that any forthcoming policy effectively treats trans service members by their sex assigned at birth was not discriminatory.
Further, he contended that Reyes and the judiciary would have little ground to review the eventual policy due to its national security basis.
He pointed to the 2018 Supreme Court case Trump v. Hawaii, which held that certain executive actions with legitimate national security interests warranted some deference by the courts, even if there was a finding of animus.
Reyes was unconvinced, noting that the underlying policy in that case — Trump’s proposed travel ban on Muslim-majority countries — was vastly different by the time it was before the high court and was stripped of the problematic portions.
She noted that, even if Hegseth ultimately provided a valid reason for a restrictive policy on trans people in the military, there was ample evidence to scrutinize the rule’s justifications.
Reyes listed several actions that appeared to paint an overarching animus against trans people by the new administration, such as the removal of references to trans people on government websites, the replacement of LGBTQ as just LGB on those sites, and even the removal of trans references at the Stonewall National Monument.
“Do you know why it’s beyond ironic and cruel to wipe trans people from Stonewall?” Reyes asked Lynch. “Because one of the main persons responsible was trans. How is it possible to view that as anything other than total discrimination?”
Reyes, herself the first openly LGBTQ judge at the U.S. District Court for the District of Columbia, was referring to Marsha P. Johnson, a transgender woman present at the Stonewall riot credited with helping start the modern LGBTQ movement.
In a heated exchange with Lynch during Tuesday’s hearing, Reyes challenged Trump’s assertion in his executive order that soldiers expressing “a false gender identity” is inconsistent with a soldier’s commitment to honor, truth, discipline, humility and selflessness.
She said that the president’s asserted basis — that the only two sexes in the government’s view are male and female — was objectively false considering the 5.6 million intersex Americans.
“This executive order is premised on an assertion that’s not biologically correct,” Reyes said Tuesday. “There are people who are neither male nor female, and so the premise of the executive order is just incorrect.”
Since Trump issued the Jan. 27 order, certain trans service members have already faced adverse effects despite Lynch’s assertion that the executive order itself was not self-executing, according to plaintiff attorney Jennifer Levi of GLBTQ Legal.
Reyes said that all military branches had taken certain actions seemingly based on the executive order, including the halting of gender-affirming care and other planned medical procedures.
She highlighted a declaration filed by U.S. Naval Officer Audrie Graham, a transgender man who was about to undergo surgery on Feb. 5, which he had been awaiting for over a year.
Graham said he had already received a sedative, been marked up for surgery, and was waiting to be wheeled into the operating room.
After about two hours, his surgeon returned to say they couldn’t move forward with the surgery because his military health insurer, Tricare, would not cover the surgery per Trump’s executive order.
Reyes scheduled a hearing for March 3 for further arguments upon receiving Hegseth’s official policy.
A coalition of civil rights organizations sued the Trump administration in a similar lawsuit on Wednesday, challenging Trump’s executive orders ending diversity, equity, and inclusion policies and programs throughout the federal government and the order redefining sex as male and female.
The National Urban League, the National Fair Housing Alliance, and the AIDS Foundation of Chicago warned that the orders roll back decades of civil rights progress and would facilitate the return of systemic discrimination and inequalities that have historically harmed LGBT people, people of color, and people with disabilities.
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