DOJ lawyer tells judge animus wouldn't be the end for Trump's anti-trans military EO

Another judge in the same courthouse temporarily blocked implementation of two provisions in another Trump order that threaten trans women's safety in prison.

A Justice Department lawyer on Tuesday afternoon insisted that, even if President Donald Trump’s executive order seeking to bar transgender people from the military was motivated by animus, the Pentagon should still be allowed to implement it.

The claim from DOJ Special Litigation Counsel Jean Lin drew a surprised response from U.S. District Judge Ana Reyes, who suggested past cases, including 1996’s Romer v. Evans, strongly counsel otherwise.

The sharp discussion — although nowhere near a resolution in the case — happened at the federal courthouse that sits a mile down Pennsylvania Avenue from the White House. On Tuesday, two very different federal judges were beginning to look at two different actions Trump took in his first two weeks in office targeting transgender people — in the military and in federal prisons.

Both judges, Reyes and U.S. District Judge Royce Lamberth, appeared to come away from their engagement on the issues Tuesday with substantial — if not yet determinative — skepticism of Trump’s anti-trans actions.

Reyes, a Biden appointee who was born in Uruguay in the 1970s and moved to the United States as a child, is a lesbian who is the first out LGBTQ person on the federal district court in D.C. Lamberth, a Reagan appointee, was born in the 1940s, appointed to the federal bench before Reyes graduated from high school, and took senior status more than a decade ago.

At 7:00 p.m. Tuesday, following a hearing earlier in the day, Lamberth issued a temporary restraining order (TRO) blocking the Trump administration for now from implementing either of two provisions in his January 20 executive order defining “sex” that relate to prisons. One would block trans women from women’s prisons, and the other would prohibit trans people from receiving gender-affirming medical care.

The ruling also specifically blocks any change in the housing status or medical care of the three trans women who sued:

It was the second ruling against the prison-related order.

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More on the prison TRO

Lamberth addressed both provisions in the executive order throughout his decision.

“With respect to the transfer provision, the plaintiffs cited to various government reports and regulations recognizing that transgender persons are at a significantly elevated risk of physical and sexual violence relative to other inmates when housed in a facility corresponding to their biological sex — which the defendants do not dispute,“ Lamberth wrote, in finding that the plaintiffs are likely to succeed in their challenge.

When it came to the the question of immediately blocking medical care, Lamberth was even more skeptical, concluding that it is hard to think of “any public interest in the immediate cessation of their hormone therapy,” aside from slight cost savings and “abstract” Executive Branch interests.

But for the trans women suing, he wrote, their interests “are not abstract at all.”

Elsewhere in the order, he noted that “there are only about sixteen” trans women “housed in female penitentiaries, including the plaintiffs“ — another reminder of the extremely outsized attention that the Trump administration and other anti-trans forces have given to these issues.

One of those women had earlier filed a lawsuit in Massachusetts, leading to a TRO blocking her transfer. Lamberth’s order was more broad in that it blocked the government, for now, from implementing the two provisions at all. It was not, by its terms, limited to the plaintiffs.

There were overlapping lawyers in all three cases — the two prison cases and the military case — and those lawyers spent the day Tuesday addressing the constitutional and other legal claims in the two D.C. cases, as well as the procedures for how they intended to move the cases forward.

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The military case

Soon after Reyes, a Biden appointee, set a schedule for briefing on the preliminary injunction request filed Monday in the military case, which would have arguments begin at 10 a.m. February 18, the case took a turn.

The plaintiffs soon thereafter Tuesday filed for more expedited relief — a motion for a TRO — after receiving word that a trans woman in military training in South Carolina was removed from the women’s barracks and told that she “is already being administratively separated based on the Order,” as the plaintiffs discussed in their legal filing supporting their TRO motion.

That led Reyes to ask for the lawyers to come to her chambers after the hearing before Lamberth, which then led her to set a 4 p.m. status conference in the case.

At the status conference, Reyes noted repeatedly that she had reached no conclusions about the case but was just highlighting the questions she wanted answers to before a tentative TRO hearing on Friday. However, throughout the status conference, there were several points where Reyes expressed incredulity at the answers given by the government lawyer, Jean Lin. Reyes also pushed back repeatedly at the plaintiffs’ lawyer, Jennifer Levi, particularly as to the fact that the trans woman who Levi kept discussing was not a plaintiff to the lawsuit.

(Eventually, Reyes basically told the plaintiffs to file an amended complaint to add the women if they wanted to keep discussing, let alone address, her treatment. The plaintiffs did so late Tuesday.)

It was Lin, though, who took most of the most aggressive questions from Reyes.

When Reyes asked whether the executive order amounted to a complete ban on trans military service, Lin kept trying to say that the policies have not yet been implemented by the military.

After several back-and-forth exchanges, an exasperated Reyes said, “We know what the executive order says.”

When Lin still wouldn’t budge, Reyes then moved on to the question of whether the order was motivated by animus, noting Trump’s campaign statement that he would “stop the transgender lunacy.”

When Lin responded, “I don’t have an answer,” Reyes moved to the executive order’s language that “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.“

Lin told Reyes, “You’re putting me in a difficult position,” a statement that led Reyes to shoot back that there are often difficult questions in the practice of law and that that is why we went to law school.

By the end of the hearing, Reyes asked Lin whether the government could agree not to agree not to take any adverse action against the plaintiffs currently in the military until the preliminary injunction motion could be decided. If the government could agree to that on Wednesday, Reyes said she will not hold a TRO hearing. If the government cannot do so, though, she made clear the parties will be back in court Friday morning.

“I am not going to allow an unconstitutional order to stand,“ Reyes said, making clear that she would act if she concludes the executive order is unconstitutional, but, in suggesting that the plaintiffs’ lawyers must justify any relief they are seeking, she also noted that she would not “overstep [her]” judicial bounds.”