President Trump’s push to restrict transgender military service has been quietly working through the courts for months, obscured from the headlines by scores of motions and counter-motions.
But it is now poised to burst back onto the public scene.
The new Democratic majority in the House has promised to expand LGBT civil rights protections, and Rep. Adam Smith, D-Wash., indicated transgender military service will be a top priority when he is expected to become the new House Armed Services chairman in January.
“We need inclusive armed services that can attract the best, most talented people without arbitrary and discriminatory barriers that narrow the field of people who can serve their country,” Smith wrote in a letter to his caucus announcing his chairman bid on Thursday.
Democrats are now in a position to use hearings to hammer on Trump’s plan to restrict many transgender people from serving in the military, and just as the federal court fight could reach the Supreme Court.
Smith had called the president’s tweets in July 2017 announcing a new policy an “unwarranted and disgraceful attack.” Yet, despite outcry from him and many Democrats, the issue gained little traction and no legislative action under a Republican House and Senate.
The House Armed Services Committee under Smith could be ground zero for hearings and any new policy related to transgender service.
“My guess is there is really going to be an effort to demonstrate that the Trump administration’s rationale for trying to reinstate the ban is not based on evidence and is based more on politics and emotion,” said Aaron Belkin, the director of the Palm Center, which advocates for transgender rights.
Trump issued surprise tweets last year announcing transgender troops would no longer be allowed to serve in any capacity, rolling back the Obama administration’s new open service policy. But Defense Secretary Jim Mattis spent six months studying the issue and handed Trump an alternative policy excluding new recruits who have been diagnosed with gender dysphoria.
Transgender troops and rights groups filed suits after the tweets, and four federal courts have issued injunctions barring Mattis from implementing any of the changes.
A key stage of the legal battle could be playing out just as the Democrats take over the House majority in January.
Trump’s Justice Department and a group of transgender plaintiffs are set to make their arguments to a federal appeals court in D.C. on Dec. 10 over whether the injunction should be lifted, according to Shannon Minter, a lead attorney in the Doe v. Trump case and legal director of the National Center for Lesbian Rights.
A win for the DOJ could clear away the injunctions while the cases are being heard and allow the Pentagon to start excluding transgender recruits. The roughly 900 troops now serving with gender dysphoria would be allowed to remain.
But the administration has already made clear it is prepared to take the issue to the Supreme Court, Minter said. That could put the issue of whether to bar transgender troops before the high court and newly confirmed Justice Brett Kavanaugh, teeing up a potentially volatile political situation with newly empowered House Democrats.
“So far, the courts have all cast great doubt on the constitutionality of the ban and cast great doubt on the administration’s claims,” Belkin said. “There’s concern, now that Justice Kavanaugh has been seated, that he might not be a fair and impartial justice when it comes to questions of LGBT issues, but that’s yet to be determined.”
