Justice Department lawyers insisted in appellate court on Tuesday that the Trump administration is not banning transgender people from the U.S. military — just two days after Defense Secretary Pete Hegseth explicitly said the opposite.
That contradiction didn’t come up when government lawyers tried to defend President Donald Trump’s executive order in January that proclaimed “expressing a false ‘gender identity’ divergent from an individual’s sex cannot satisfy the rigorous standards necessary for military service.”
The lawyers argue that the order still allows transgender people to serve in the military, as long as they identify as their sex at birth — and that the president, as commander-in-chief, has the authority to determine what’s best for the military regardless.
But within minutes of the hearing’s start, the three jurists on the panel appeared unconvinced at the way government lawyers tiptoed around the order’s targeting transgender current and incoming service members while simultaneously justifying its legal basis.
Trending
“How can you say that — when somebody who has no medical condition, has never been diagnosed with gender dysphoria but who has transitioned and who lives in a sex other than their birth sex is explicitly banned by the policy? It’s clearly banning all transgender persons,” one judge said.
“I disagree with that last part, your honor,” replied Jason Manion, a counselor to the associate attorney general in D.C.
Manion went on to clarify that the new policy would “allow people who identify as something other than their sex to serve in their sex.” With that phrasing, he meant that the Trump crackdown would allow a transgender person to enter or remain in the military if they stuck with their gender assigned at birth.
While the DOJ team in the appellate court maintained that this policy is not a discriminatory ban on transgender people, that claim was directly contradicted by Hegseth’s recent posts on X.
Hegseth made it clear when responding to a post by Democrats that the scandal-embroiled secretary of defense “needs to go.”
“Your agenda is illegals, trans & DEI — all of which are no longer allowed @ DoD,” Hegseth wrote.
Government lawyers had to address the way Hegseth retweeted a Fox News article on Feb. 27 while quoting the headline “Pentagon says transgender troops are disqualified from service without an exemption.”
In court papers, DOJ lawyers claimed the post “did not announce anything, much less anything inconsistent with the terms of the policy itself.”
During the hearing, one appellate judge asked, “Your argument that this is not a ban on transgender service is that you can serve as a transgender person as long as you don’t serve as a transgender person, is that right?”
D.C. Circuit Judges Gregory G. Katsas, Cornelia T.L. Pillard and Neomi Rao will decide whether to lift a stay imposed by a trial judge that bars the military from implementing Trump’s executive order, which targets transgender people for what it calls the sake of “high standards for troop readiness, lethality, cohesion, honesty, humility, uniformity, and integrity.”
On March 18, Judge Ana C. Reyes froze the policy with a 79-page opinion that noted how the executive order nowhere mentions the term “transgender” but clearly refers to transgender people.
“The president has the power — indeed the obligation — to ensure military readiness. At
times, however, leaders have used concern for military readiness to deny marginalized persons
the privilege of serving,” she wrote.
“[Fill in the blank] is not fully capable and will hinder combat effectiveness; [fill in the blank] will disrupt unit cohesion and so diminish military effectiveness; allowing [fill in the blank] to serve will undermine training, make it impossible to recruit successfully, and disrupt military order. First minorities, then women in combat, then gays filled in that blank. Today, however, our military is stronger and our nation is safer for the millions of such blanks (and all other persons) who serve,” Reyes wrote.
—
Jose Pagliery is a reporter at NOTUS.
Author
