A federal judge spent Wednesday morning grilling a Department of Justice lawyer about the legality of the Pentagon’s transgender service member ban, repeatedly suggesting the policy relies on a flawed understanding of gender dysphoria.
The Pentagon’s new policy to separate transgender U.S. service members from the military is facing its first legal test as U.S. District Judge Ana Reyes considers issuing an order blocking the policy from taking effect.
During Wednesday’s hearing, Judge Reyes said that the government “egregiously misquoted” and “cherry picked” scientific studies to incorrectly assert that transgender soldiers decrease the readiness and lethality of the military.
While Judge Reyes has not yet issued a formal ruling, she repeatedly suggested that the policy unfairly targets a class of people that the Trump administration dislikes.
“The question in this case is whether the military under the equal protection rights afforded to every American under the due process clause of the Fifth Amendment, if the military … can do that and targeting a specific medical issue that impacts a specific group that the administration disfavors,” she said.
Judge Reyes also pressed DOJ attorney Jason Manion to identify any other similar medical issues that has prompted a similar response from the Department of Defense.
“Identify for me a single other time in recent history where the military has excluded a group of people for having a disqualifying issue, because I can’t think of one,” Judge Reyes asked.
The Department of Defense logo is seen on the wall in the Press Briefing room at the Pentagon, Oct. 29, 2024, in Washington.
Kevin Wolf/AP
Manion answered that the military applied a similar policy for soldiers who declined to take the COVID-19 vaccine, prompting an incredulous Judge Reyes to ask anyone in the gallery to raise their hand if they had gotten COVID.
“Lots of people raise their hands, right?” Judge Reyes said. “All different kinds of people … so it wasn’t just aimed at getting rid of one group of people.”
The plaintiffs have argued that the DOD’s policy — which was finalized in late February and bans most transgender service members from serving with some exceptions — violates the Fifth Amendment’s right to equal protection and causes irreparable harm by denigrating transgender soldiers, disrupting unit cohesion and weakening the military.
“This case is a test of the core democratic principle that makes our country worth defending — that every person is of equal dignity and worth and is entitled to equal protection of the laws,” the plaintiffs argued.
Lawyers with the Department of Justice have defended the policy by arguing the court should not intervene in military decision-making, describing gender dysphoria as a condition that causes “clinically significant distress or impairment in social, occupational, or other important areas of human functioning.”
“DoD has been particularly cautious about service by individuals with mental health conditions, given the unique mental and emotional stresses of military service,” government lawyers argued.
During a hearing last month, Judge Reyes — a Biden appointee who was the first LGBT judge on the D.C. District Court — signaled deep skepticism with the government’s claim that transgender service members lessen the military’s lethality or readiness, though she declined to intervene until the DOD finalized their policy.
When the policy was formalized last month, she quickly ordered the government to clarify key tenets of their policy, including identifying what “mental health constraint” other than gender dysphoria that conflicts with the military’s standards of “honesty, humility, and integrity.”
She also raised doubts about the government’s claims about the exceptions to the policy, flagging on the court’s docket a recent DOD social media post that “transgender troops are disqualified from service without an exemption.”
The hearing comes amid an increasingly hostile relationship between Judge Reyes and the Department of Justice.
After Judge Reyes excoriated a DOJ lawyer last month during a hearing in the case, the Department of Justice filed a complaint with an appeals judge about what they alleged was Reyes’ “hostile and egregious misconduct.”
Attorney General Pam Bondi’s chief of staff Chad Mizelle alleged that Reyes demonstrated a political bias, compromised the dignity of the proceedings and inappropriately questioned a DOJ attorney about his religious beliefs.
“At minimum, this matter warrants further investigation to determine whether these incidents represent a pattern of misconduct that requires more significant remedial measures,” Mizelle wrote.
