A court hearing on the Trump administration’s efforts to ban transgender people from the military has wrapped up for now, with a federal judge expected to decide in the next couple of weeks whether to block a ban from taking effect as a lawsuit proceeds.
While not quite as fiery as Tuesday’s session, Wednesday’s oral arguments saw Judge Ana Reyes of the federal district court in Washington, D.C., lay out in stark detail President Donald Trump’s and his administration’s pattern of targeting transgender people since his first day in office last month.
“You tell me whether this feels discriminatory,” Reyes, an appointee of former President Joe Biden, told a Justice Department lawyer.
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“He has signed an executive order recognizing the existence of only two sexes, biology to the contrary. He has blocked schools from using federal funds to promote the idea that gender can be fluid. He has directed the State Department to stop issuing documents that allow a third X gender marker. He has changed the reference to LGBTQ on government websites only to LGB, literally erasing transgender people,” she said. “He banned the participation of transgender women in women’s sports, revoked the ability of transgender federal employees to receive gender-affirming care … directed that all transgender people in federal prisons be denied medical treatment and be housed by birth sex, where they are nine times more likely to have acts of violence committed against them, including rape and repeated rape.”
Reyes continued.
“The Office of Personnel Management issued a memo directing all agencies to ‘take down all outward-facing media websites, social media accounts etc. that inculcate or promote gender ideology,’ resulting in vital Centers for Disease Control pages on contraception guidelines, vaccine information and HIV data … to be taken down,” the judge said. “The Office of Management and Budget, following the president’s directive, issued a memo promising to stop the use of federal funds to promote ‘transgenderism.’ The Trump administration even has revoked the previous regulation ensuring that transgender individuals have equal access to homeless shelters.”
Reyes was speaking at the second day of a hearing on whether to issue a preliminary injunction that would block any policy banning transgender people from serving in the military from taking effect while a lawsuit against Trump’s executive order calling for such a policy works its way through the courts.
Coupled with Tuesday, when Reyes tore into the Justice Department lawyer for what she described as “unadulterated animus” in Trump’s executive order, Wednesday’s session appeared to offer a strong indication that she is leaning toward blocking the policy while the litigation is ongoing.
While Reyes expressed some skepticism over the course of the two-day hearing about the plaintiffs’ argument that banning transgender service members would harm military readiness, she spent the bulk of the sessions poking holes in the administration’s argument that the order is not discriminatory or a ban.
Still, Reyes did agree with the government in one respect: that it would not make sense to block a policy from taking effect before the Pentagon actually issues its policy to implement Trump’s order.
As such, she said she will hold off on deciding on a preliminary injunction until after the Pentagon releases its policy, which Trump’s order called for by next week, and scheduled another hearing on the request for an injunction March 3.
But based on the oral arguments so far, the plaintiffs in the lawsuit said they are hopeful Reyes will issue the injunction.
“We’re optimistic that we will obtain a preliminary injunction because the law is on our side,” Shannon Minter, legal director at the National Center for Lesbian Rights, or NCLR, told reporters on a conference call Wednesday afternoon. “The facts are on our side.”
NCLR and GLBTQ Legal Advocates and Defenders, or GLAD Law, brought a lawsuit against Trump’s order on behalf of several transgender service members and people in the process of enlisting.
Trump signed the order late last month, calling for the Pentagon to adopt a policy on transgender military service that reflects the administration’s position that being transgender is incompatible with the military’s “honorable, truthful and disciplined lifestyle” and the “humility and selflessness required of a service member.”
Since then, the military services have stopped accepting recruits with histories of gender dysphoria and ceased providing some gender-affirming health care for transgender service members, in line with a memo from Defense Secretary Pete Hegseth directing a pause in those activities while he crafts a comprehensive policy.
The lawsuit argues Trump’s order violates the Constitution’s guarantee of equal protection under the law. Citing the halted medical care, among other factors, the plaintiffs argued a preliminary injunction is needed because there has been immediate harm from the order.
Administration lawyers, meanwhile, argued Trump’s order was not itself a ban because it directed the Pentagon to come up with a policy and that being transgender is not a protected class under equal rights law.
On Wednesday, Reyes listed the litany of actions Trump has taken against transgender people in the last month as she questioned the government’s position that discrimination against transgender people hasn’t risen to the level of needing to be a protected class.
Noting she recently received an email from a member of the public telling her to find Jesus, Reyes asked the Justice Department lawyer what Jesus’ reaction would be to excluding transgender people from homeless shelters.
Jason Lynch, the Justice Department attorney, replied: “The United States is not going to speculate about what Jesus would say.”
Related: ‘Unadulterated Animus’: Judge Tears into Trump Administration at Hearing on Transgender Military Ban