For the third time in the four federal cases challenging the Pentagon’s transgender ban, the court has ruled the government has failed to show what deliberative process it undertook to decide some transgender personnel should not be allowed to serve.
In the lawsuit, Doe v. Trump, transgender service members and recruits are challenging the Pentagon’s new policy on transgender service members, which forbids any recruit or service member experiencing “gender dysphoria” from serving, and implements additional restrictions on those transgender personnel already serving. But “gender dysphoria” is a broad term and technically anyone who is one who is uncomfortable with their biological sex, and identifies as another, could experience it.
Since last fall, attorneys have filed four federal cases challenging the ban: Doe v. Trump in Washington, D.C.; Karnoski v. Trump in Washington State; Stockman v. Trump in California and Stone V. Trump in Maryland. The lawsuits have led to some of the Pentagon’s new transgender policy being overruled, such as Mattis' earlier decision not to allow transgender recruits to enlist as of Jan. 1, 2018. They may now enlist if they meet recruitment standards.
In the cases of Stone, Karnoski, and now Doe, the courts have ruled that the Pentagon must comply with plaintiffs' request for discovery and produce the documentation that would show what deliberations and research Defense Secretary Jim Mattis relied upon when, at the White House’s direction, he issued his recommendations to President Donald Trump on the restrictions to transgender service.
In Doe on Friday, federal district judge Colleen Kollar Kotelly said that DoD had not been forthcoming enough.
“Despite the fact that one of defendants’ main defenses in this action is that their decisions regarding transgender military service are owed great deference because they are the product of reasoned deliberation, study and review by the military, defendants have withheld nearly all information concerning this alleged deliberation. This is not how civil litigation works,” the judge wrote, rejecting the government’s request.
“The court said that the government can’t continue to stonewall by refusing to disclose basic information about why it suddenly reversed military policy that permitted open service by transgender people," said Jennifer Levi, transgender Rights project director for GLBTQ Legal Advocates & Defenders (GLAD.)
“Then we will either move for summary judgment based on what they disclose or possibly go to trial,” said Shannon Minter, legal director for the National Center for Lesbian Rights who is also representing the Doe plaintiffs.
The Pentagon did release a study it said at the time helped inform Mattis' decisions, which Minter said “had no basis in medical science.”
The study “is riddled with internal inconsistencies and false stereotypes,” Minter said. “The government has refused to provide any meaningful information about how it came to such distorted and scientifically unsupported conclusions.”
Each of the lawsuits was filed in the months since Trump’s July 26, 2017, tweet about transgender service threw current policy up in the air. The Pentagon has, in the months since, worked to produce a policy that meets Trump’s request, while acknowledging, and balancing for, the impossible place the tweet put the Pentagon in.
Just a year prior, under former President Barack Obama, transgender service members — who had served in Iraq and Afghanistan, and in operations against the Islamic State — had for the first time been allowed to serve openly, and many had already come out. Since then, each of the service chiefs has also made a point to say that no harm would come from having transgender service members within the ranks.
On Friday, the Pentagon repeated what has been its response to the issue since the transgender ban became challenged in the courts.
“In accordance with court orders, we will continue accessing and retaining transgender applicants and service members and all aspects of the previous policy are in effect,” said Pentagon spokeswoman Air Force Maj. Carla Gleason. “All applicants who have a history of, or are receiving treatment for, a disqualifying medical condition must obtain a waiver or exception to policy. Because this matter is being handled in multiple federal courts, and to avoid interfering with that process, I’m not going to be able to provide further details at this time.”
Tara Copp is the Pentagon Bureau Chief for Military Times and author of the award-winning military nonfiction "The Warbird: Three Heroes. Two Wars. One Story."