Judge Grills DOJ Lawyer Over Trump-Era Transgender Military Ban

A lawyer for the Trump administration was questioned harshly and didn’t seem to be believed by a judge on Tuesday during oral arguments over the Pentagon’s plan to ban transgender service members. This may seem like a repeat of something that happened weeks ago.

At the hearing, Circuit Judge Cornelia T.L. Pillard, who was appointed by Barack Obama, clearly and audibly didn’t agree with the points made by U.S. Department of Justice lawyer Jason Manion.

The judge looked down on the DOJ lawyer and asked, “How can you say that?” This showed that he or she didn’t agree with the government’s point of view right away.

Manion, on the other hand, is used to getting scolded by the law.

Nicolas Talbott and a few other people sent their case to the U.S. District Court for the District of Columbia on January 28. According to the case, the rule against transgender service members goes against the Fifth Amendment’s Due Process clause because it treats people differently “because of their sex” and “because they are transgender.”

On March 12, U.S. District Judge Ana C. Reyes, who was appointed by Joe Biden, was very harsh on Manion and other DOJ lawyers for what she saw as problems with their basic knowledge, poor legal analysis, lack of preparation, intellectual honesty, and other things.

On March 19, Reyes made a harsh order that stopped the program with a preliminary injunction. It was “soaked in animus and dripping with pretext,” she said, and she thought it was against the Constitution because it discriminated based on sex and status.

The government tried to overturn the district court’s decision on Tuesday by saying that Reyes had simply exaggerated what the Pentagon’s planned but paused policy would do.

“This policy, like those of every other administration in the last ten years or so, focused on a medical condition and treatments related to that condition,” Manion said. “It focused on gender dysphoria and treatments related to that condition.” “It was clearly wrong for the district court to think that this policy covered more than it just did.”

The vocal judge didn’t agree with that description.

“How do you say that?” Pillard asked her. “Why does the policy make it clear that people who have transitioned and live in a sex other than their birth sex are not allowed to do so? They have never been diagnosed with gender dysphoria. It’s clear that all transgender people are banned.

The lawyer for the DOJ pushed back again.

“People who identify as something other than their sex can serve in their sex,” Manion told the court. “That’s true of all policies that came before and after this one.”

There was some back and forth between the judge and the lawyer over the definitions used by experts mentioned by both the government and the transgender service member plaintiffs. They had different ideas about who is transgender and what transitioning might mean in terms of the proposed ban.

At some point, the judge seemed tired of the battle over definitions and tried to restate what she thought the DOJ’s stance was.

“You say that this doesn’t mean transgender people can’t work because you can work as a transgender person as long as you don’t work as a transgender person,” Pillard pressed Manion on the point.

The lawyer said, “I certainly wouldn’t put it that way.”

The government lawyer then said that the policy “targets a subset” of transgender people, especially those who have been diagnosed with gender dysphoria. In his guess, Manion said that this diagnosis causes “significant clinical distress” and “impairment of functioning” in “important areas.”

The other two judges on the three-judge panel in the D.C. Circuit, Gregory G. Katsas and Neomi Rao, mostly kept quiet and didn’t ask nearly as many questions as Pillard.

Katsas did speak up, though, when Manion made a point about the level of review. The lawyer said that the appeal court would not be answering a normal question about transgender rights because the military was involved. This made the case more about executive power than the constitutional rights of a group.

Rao quickly followed up with the DOJ lawyer to explain why the appellate court might not be able to agree with the lower court’s findings of fact that the policy is based on animus.

“Even if you have to agree with the fact that this decision was made out of animus, I don’t think that answers the legal question of whether you can skip the normal deference that would normally apply to this decision.” Manion had an article.

The woman President Trump picked to take Justice Brett Kavanaugh’s place seemed a little taken aback by this answer.

“Do you agree that there was animus?” Rao replied.

The attorney for the government said no.

He also said, “It’s clearly wrong to think that the policy can’t be explained by anything other than animus.” “The important question is whether the policy can be explained by something other than bias.”

The lawyer for the DOJ said again, as he had before in court and in papers, that the 2018 U.S. Supreme Court case Trump v. Hawaii is the most important one.

Concerns about anti-Muslim or anti-Islam bias were not taken into account by the nation’s top court when it upheld the constitutionality of the first Trump administration’s travel ban, which mostly targeted countries with large Muslim populations. Even though Trump called the policy a “Muslim ban” while running for president in 2016, most people looked at and believed the policy’s text instead of Trump’s words.

On Tuesday, Pillard wouldn’t agree with the comparison. He pointed out that the high court had also praised the travel ban for only affecting a small part of the world’s Muslim population and being based on “careful study” from security experts.

The judge said, “This is something rather different.” According to Pillard, the president is issuing an executive order that is clearly biased because it doesn’t tell anyone or any group of experts to look into this problem. Instead, it tells the Secretary of Defense to stop transgender people from serving in the military. “And in a month, the Secretary of Defense did it without any more research.”