A federal judge in Washington, D.C., tore into the Trump administration’s efforts to bar transgender people from the military on Tuesday as she weighed whether to block any ban from taking effect while a lawsuit works its way through the courts.
During the first day of arguments in a hearing that will last at least another day, Judge Ana Reyes spent Tuesday picking apart the Trump administration’s arguments that President Donald Trump’s executive order in and of itself is not a ban on transgender military service.
The order “calls an entire category of people dishonest, dishonorable, undisciplined, immodest, who lack integrity — people who have taken an oath to defend this country, who have been under fire, people who have taken fire for this country,” said Reyes, an appointee of former President Joe Biden.
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“We’re dealing with unadulterated animus,” she added.
Reyes was hearing arguments as part of a lawsuit filed by two LGBTQ+ advocacy groups on behalf of several transgender service members and recruits. The plaintiffs asked the court to issue a preliminary injunction to prevent a ban on transgender service members from being enacted as the lawsuit progresses through the legal system.
Lawyers from the Justice Department argued that an injunction would be premature since the Pentagon has not fully implemented Trump’s order yet, while lawyers for the plaintiffs maintained that harm is already being done to their clients since gender-affirming medical care has been halted and accessions for transgender recruits have been paused.
While Reyes agreed to delay her decision on an injunction until after the Pentagon issues its formal implementation plan later this month, she appeared highly skeptical the Defense Department’s policy would be anything other than a ban based on the language in Trump’s order.
“I firmly believe that the policy that we get on the 28th is going to be little different from the executive order, but … I’m sure will clarify it in a way that is clear that this is a transgender ban or most transgender ban,” Reyes said.
In late January, Trump ordered the Pentagon to adopt a new policy on transgender military service. While the order left most of the details of the policy to Defense Secretary Pete Hegseth to determine, it directed the Pentagon to adopt a policy that reflects the administration’s position that being transgender is “not consistent” with military service.
“Beyond the hormonal and surgical medical interventions involved, adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful and disciplined lifestyle, even in one’s personal life,” the order says in its “purpose” section. “A man’s assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member.”
Trump’s order gave Hegseth 30 days to draft an implementation plan and 60 days to carry out that plan.
Since Trump’s order, Hegseth issued a memo directing the military services to stop accepting recruits with histories of gender dysphoria and stop providing some gender-affirming health care for transgender service members while he crafts a comprehensive policy.
And since Hegseth’s order, medical care has already been denied, according to sworn statements filed by service members last week in support of the lawsuit. For example, Navy Petty Officer 3rd Class Audrie Graham said he was already in a hospital gown and hooked up to an IV ahead of a double mastectomy when his surgeon told him she could no longer perform the procedure because of Hegseth’s memo.
Army Staff Sgt. Roan Pickett said he was driving from Fort Johnson, Louisiana, to Los Angeles on previously approved leave to get care for a postoperative complication from a previous gender-affirmation surgery when he received a call from a superior saying he would be considered AWOL if he didn’t return immediately. And another soldier, Master Sgt. Amiah Sale, said she has a time crunch on a preliminary injunction decision because she is scheduled to get an orchiectomy later this month before a permanent change of station in March to South Korea, where the surgery is unavailable.
During Tuesday’s hearing, Jason Lynch, trial attorney for the Justice Department, argued Trump’s order was not itself a ban because it directs the Pentagon to come up with a policy and suggested the Pentagon’s ultimate policy may fall short of a full ban. Lynch cited the transgender military service policy during the first Trump administration, which was somewhat more narrow than the full ban he had initially ordered in 2017.
“Every guidance document that we have filed with the court talks about pausing, waiting, holding on, there’s more guidance coming, don’t do anything yet,” Lynch said.
But, Reyes noted, the first Trump administration never questioned transgender troops’ honor, truthfulness, discipline, humility and selflessness like Trump’s order last month did.
“If we had President Trump here right now, and I said to him, ‘Is this a transgender ban,’ what do you think he would say?” Reyes asked Lynch.
When Lynch replied that he had “no idea” what Trump would say, Reyes shot back that “I do.”
“He would say, ‘Of course it is,'” Reyes continued. “Because he calls it a transgender ban, because all the language in it is indicative of, if not requires, a transgender ban.”
Reyes also repeatedly pressed Lynch on whether the administration has any empirical evidence that transgender service members are harming the military’s ability to be ready for war. Lynch offered none.
“Can you and I both agree that the greatest fighting force the whole history has ever seen is not going to be impacted in any way by less than 1% of the soldiers using a different pronoun than what others might want to call them,” Reyes said. “Do you agree with me that if our military is negatively impacted in any kind of way that matters by certain people having to use certain pronouns, we all have a lot bigger problems than pronoun use, we have a military that is incompetent?”
While Reyes spent most of Tuesday’s hearing ripping into the Trump administration, she also expressed some skepticism at the plaintiffs’ argument that banning transgender service members would have hurt military readiness since estimates place the number of transgender people serving in the military around, at most, 15,000 out of more than 2 million troops.
“Can you agree, just like the government can’t really say that allowing this small percentage of people who have been seen militarily fit to serve is going to negatively impact military preparedness and unit cohesion, can say for the same reason that [a ban] won’t negatively impact it?” Reyes asked the plaintiffs’ lawyer.
The lawyer, Jennifer Levi, senior director of transgender and queer rights at GLAD Law, responded by pointing to statements from former Biden administration Pentagon officials submitted as part of the lawsuit supporting open transgender service.
“The military experts who have submitted declarations in this case have said that a policy that excludes transgender people that have met the rigorous requirements of service would undermine the readiness as well as the lethalities of the force,” Levi said.
The hearing on the preliminary injunction request is scheduled to continue Wednesday. Before adjourning for the day, Reyes also said she would hold another hearing March 3 after the expected release of the Pentagon’s implementation plan.
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