published Jul 11, 2018 6:39:27 PM, by Erik Larson
(Bloomberg) —

The Trump administration is now claiming the upper hand in legal challenges to its prohibition on transgender Americans in the military thanks to the the U.S. Supreme Court’s recent decision upholding the travel ban against several predominantly Muslim nations.

The Supreme Court in June held that Trump’s many negative comments about Muslims on the campaign trail were irrelevant to a judicial review of the policy, particularly because the third and final version of the ban was based on an intense national security review. Likewise, Trump’s ban on transgender soldiers was issued in 2017 with little preparation, only to be withdrawn and replaced this year by a more carefully drafted version.
The Trump administration connected the two directives in a July 9 filing in federal court in Seattle, where a national civil rights organization, Lambda Legal, sued on behalf of transgender soldiers who want to overturn the policy. A judge put the ban on hold during the litigation.

The travel-ban ruling “instructs that the court must assess the 2018 policy on its own terms, rather than assessing purported intent behind the policy based on prior statements,” the Justice Department said. “Such alleged animus is not pertinent to review of the military’s new policy.”

The government wants to block the soldiers’ request for an order forcing the administration to hand over documents and other materials drafted in the lead-up to the transgender ban — documents that could show Trump’s intent. The material is currently being withheld under a government privilege that plaintiffs argue shouldn’t apply because Trump’s policy is based on animus.
President Donald Trump announced in July 2017, on Twitter, that transgender Americans would be barred from serving in the military “in any capacity” and cited the burden of “tremendous medical costs and disruption that transgender in the military would entail.” A later version of the ban, which Defense Secretary James Mattis said was crafted by military experts, would allow transgender people to serve openly in their “biological sex.”
“The court should focus on the stated justifications for the policy” and “not any underlying presidential statements or deliberations,” the U.S. said.

About 15,000 transgender Americans are estimated to be serving in the military, while U.S. allies such as Britain, Israel and Canada also allow transgender troops to serve. Rights groups have argued the ban is intended to please Trump’s conservative base and isn’t based on fact. They point to a Defense Department study from 2016 that said transgender soldiers don’t impede readiness and that transition-related medical costs are dwarfed by other health costs, such as Viagra prescriptions.

The administration has also cited the travel ban ruling in the federal appeals court in San Francisco, where it’s seeking to lift the Seattle judge’s injunction against the transgender ban.

Lambda’s lead attorney in the case said the government is overplaying its hand.

“The Supreme Court found that the travel ban was neutral on its face toward religion,” said the group’s lawyer, Peter Renn. “The ban on military service openly targets transgender people, without any attempt to hide the government’s discrimination. Had the travel ban instead been titled, the ‘Muslim Admission Policy,’ there’s no question that the case would have come out differently.”

To contact the reporter on this story: Erik Larson in New York at elarson4@bloomberg.net To contact the editors responsible for this story: David Glovin at dglovin@bloomberg.net Peter Blumberg, Elizabeth Wollman

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