Reviewing Trump's military order, judge says admin's anti-trans acts "scream animus"

Judge Ana Reyes held the second of three scheduled days of hearings in a challenge to the constitutionality of Trump's executive order over trans military service.

The flurry of anti-transgender actions taken by the new administration in President Donald Trump’s first month back in office painted a stark picture on Wednesday morning as U.S. District Judge Ana Reyes ticked them off.

Reyes read the lengthy list of actions after a Justice Department lawyer, Jason Lynch, could only muster the incredible statement in court that “I am sure they can find an instance of discrimination“ when the judge asked the government if transgender people face discrimination.

"You cannot tell me that transgender people are not being discriminated against," Reyes shot back. Noting the National Park Service’s scrubbing of mentions of transgender people from the Stonewall National Monument’s website, she said, "We are literally erasing their contributions to modern society.”

The exchange came an hour into the second day of arguments before Reyes, a Biden appointee, in a case over the constitutionality of President Donald Trump’s anti-transgender executive order relating to military service.

Looking at the administration’s actions, Reyes said bluntly, “It screams animus.”

Although the administration argued that a finding of animus wouldn’t necessarily spell the end of the case for the government, particularly in the national security context, Reyes told Lynch that he was “overreading” the U.S. Supreme Court’s decision in Trump v. Hawaii — upholding the first Trump administration’s third version of its travel ban — to make such a claim.

As the National Center for Lesbian Rights’s Shannon Minter — arguing for the transgender service members along with GLBTQ Legal Advocates & Defenders’s Jennifer Levi in court — explained, the relevant point in that case was that animus from past statements was found not to infect the then-current executive order because it contained a legitimate basis for its enactment.

That, Minter said, would not be the case here.

Although there will be no ruling in the case this week, it was clear that Reyes is extremely skeptical of the government’s arguments both on the facts of the executive order and on the law controlling her consideration of the case — including strongly suggesting that she believes the order violates equal protection guarantees.

However, because the executive order requires the Defense Department to issue its implementation guidance by next week, Reyes agreed with the government to hold off on a ruling on the plaintiffs’ request for a preliminary injunction until the parties and court can view, brief, and discuss that implementation guidance. The Justice Department was challenging whether the case was ripe for review before the implementation guidance was issued, and, as Reyes put it, since the deadline for that guidance was coming so soon, it wouldn’t alter the timing of the case much at all to wait — and, in so doing, would avoid her needing to address the ripeness argument at all.

As such, the two days of argument this week will be followed by additional briefing after the guidance comes out and a follow-up hearing on the morning of March 3.

On the central legal questions debated this week, Reyes clashed with the government lawyer repeatedly. The exchange over animus on Wednesday was just one of several sharp moments Lynch faced over the two days of arguments in his defense of the administration.

At one point on Tuesday, the judge took Lynch through the text of Trump’s January 27 executive order, “Prioritizing Military Readiness and Excellence,” asking him what evidence the government had for various sentences and, eventually, whether those sentences demean transgender people. Among the sentence-by-sentence provisions Reyes read were the following statements from the executive order:

• Consistent with the military mission and longstanding DoD policy, expressing a false "gender identity" divergent from an individual's sex cannot satisfy the rigorous standards necessary for military service.

• [T]he Armed Forces have been afflicted with radical gender ideology to appease activists unconcerned with the requirements of military service like physical and mental health, selflessness, and unit cohesion.

• [A]doption 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.

• A man's assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member.

• It is the policy of the United States Government to establish high standards for troop readiness, lethality, cohesion, honesty, humility, uniformity, and integrity. This policy is inconsistent with the medical, surgical, and mental health constraints on individuals with gender dysphoria.

For most of the sentences, Lynch acknowledged that there was no specific evidence at this time on this record to support the claims. On a few points, Lynch pointed to the 2018 report issued during the first Trump administration’s efforts to ban or limit transgender people from military service as evidence. But, for example, Lynch acknowledged that the 2018 report said nothing about the honesty, humility, or integrity of transgender service members.

In response, Reyes then asked Lynch whether it "expresses animus” to say that an entire group of people are dishonest, undisciplined, and lack integrity — people, she noted in reference to some of the plaintiffs, “who have been under fire.”

Lynch would not provide a yes or no answer, prompting Reyes to tell him: "We are dealing with unadulterated animus."

At Wednesday’s hearing, Reyes also invited discussion over whether the executive order classifies people based on sex subjecting the order to heightened scrutiny and whether classifications based on transgender status should independently be viewed as a “quasi-suspect class” — a second path to heightened scrutiny.

In discussing sex discrimination, the parties and Reyes discussed Bostock v. Clayton County, the 2020 Supreme Court decision holding that the sex discrimination ban in Title VII of the Civil Rights Act of 1964 includes a ban on gender identity discrimination and sexual orientation discrimination.

When Reyes asked whether the “logic” of Bostock applied here, Lynch argued that it would not violate equal protection’s sex nondiscrimination principle if it was against both transgender women and transgender men.

Minter countered that “the problem” with the government’s argument is that "it runs headlong into decades" of equal protection caselaw, highlighting a 1994 case.

Regarding the question of whether transgender status itself, then, should merit additional scrutiny, Reyes laid out all of the discrimination faced by transgender people in the current moment. Asking Lynch to respond, he would only say that the government does not think that “merits creating a new quasi-suspect class.”

Incredulous, Reyes replied: "What on earth would?"

Although there were questions over the definition of “transgender” and how far the implementing guidance would go, Reyes eventually made clear Wednesday that it was not essential that the order affect all transgender people, however defined, in order to be found to discriminate against transgender people.¹

It wasn’t only a debate about the legal questions on Tuesday and Wednesday, either. Reyes also highlighted that Trump's orders are just wrong in multiple places.

In a point that she raised again Wednesday, Reyes noted on Tuesday that Trump’s executive order from January 20 stating that there are only two sexes “is premised on an incorrect biological assessment.” This is relevant because the January 20 order’s “sex” definition is read into the January 27 military executive order.

At another point, and regarding language in the January 27 order suggesting that only transgender or nonbinary people's pronouns are "invented," Reyes noted, “Every single pronoun in the history of mankind has been invented.”

For now, though, we await the Pentagon’s guidance implementing the executive order.

In the meantime, the plaintiffs and government have some follow-up briefing in the case, Talbott v. Trump, and were told to provide any additional briefing following the issuance of the guidance by March 2 in advance of the March 3 hearing.

Based on Reyes’s comments, a ruling on the preliminary injunction request would likely be issued no later than March 10. Regardless of her ruling, however, the losing side — or both sides, depending on how she rules — is expected to appeal to the U.S. Court of Appeals for the D.C. Circuit.

1. This paragraph was added after initial publication, with the final update at 4:35 p.m.