Donald Trump’s administration has argued in court that trans people should only be allowed to serve in the military as their assigned gender at birth.
In the US Court of Appeals for the DC Circuit on Monday (November 10), Department of Justice Attorney Brinton Lucas told judges that the ban didn’t apply to all trans servicepeople, just those with a history of gender dysphoria or seeking treatment to transition, according to The Daily Beast.
He told the court that this would mean trans people would not technically be “discharged on the basis of their transgender status.”
A judge asked the attorney: “But under the Mattis policy, they would have to identify with their biological sex to remain in the military, right?” to which Lucas responded: “That is true, your honour.”
Judge Thomas B. Griffith made a similar point, telling Lucas: “As I understand it, you’re saying there are transgendered individuals in the military who can serve consistent with their biological sex.
“The government is playing word games by arguing that trans people can serve in their birth sex. That is a contradiction in terms.”
— Jennifer Levi, director of GLAD’s Transgender Rights Project
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“But don’t they have to suppress the very nature of their transgender condition to do that?”
Lawyer uses non-binary people to argue policy isn’t a trans ban
The lawyer responded by observing that there are trans people who don’t desire to transition, saying: “There are some transgender individuals who identify as non-binary or gender fluid and so the concept of gender transition has no meaning for these individuals.”
Trans people who identify outside the gender binary do sometimes seek medical treatment to transition, and are also affected by the government’s proposed policy, which would force them to serve as the binary gender they were assigned at birth.
Jennifer Levi, director of GLAD’s Transgender Rights Project, rejected Lucas’s argument, telling the court: “A requirement that someone suppress their identity is not an exception to a ban.”
In a later statement, Levi added: “The government is playing word games by arguing that transgender people can serve in their birth sex. That is a contradiction in terms.
“This is not a game. What’s at stake here is the lives of dedicated servicemembers, who are willing and able to serve—and are prepared to make the ultimate sacrifice for their country.”
The government is seeking to overturn one of the injunctions imposed on the trans ban since Trump announced it on Twitter in July 2017.
Judges in Washington state and California have also refused to rescind injunctions on the Trump administration implementing the ban, leading the government to ask the Supreme Court to fast-track its review of the policy.
If the government fails to convince the DC judges to rule in its favour, trans people will be able to keep serving as their gender until the Supreme Court reaches a decision.