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DC Circuit Hears Transgender Military Ban Arguments

By William Vogeler, Esq. on December 12, 2018 | Last updated on March 21, 2019

Gender dysphoria was a puzzling subject of debate before the D.C. Circuit Court of Appeals.

Arguing for President Trump's policy against transgenders in the military, a government lawyer said people with the condition are not fit for service. Representing the plaintiffs, a private attorney, said the policy unlawfully discriminates against them.

The appeals court listened, but had some questions about the condition. One judge said transgender individuals have gender dysphoria by definition, don't they?

Gender Dysphoria

In February, Defense Secretary James Mattis released a memo that says people who identify with a gender different than their biological sex are ineligible for service. There is an exception for transgender people so long as they are not diagnosed with gender dysphoria.

According to the American Psychiatric Association, gender dysphoria involves a conflict between a person's physical gender and the gender they identify with. Judge Thomas Griffith got it, and questioned the government's lawyer about it.

"If one is a transgender individual, the manifestation is not acting in accordance with biological effect," Griffith said. "No one can fit within the category you've described."

The Mattis plan, he suggested, works "a total ban on transgendered individuals." But Justice Department attorney Brinton Lucas argued that 18 percent of transgender people have no plans to undergo sex reassignment, and they could be eligible for service.

Depression Disorders

Lucas also said gender dysphoria has been linked to depression and other disorders that pose a risk in combat. GLADD attorney Jennifer Levi said the government was playing a "word game with the court."

"It's a contradiction to suggest that there is an exception that allows transgender people to serve freely while they are suppressing the core characteristic of what it means to be transgender," she said.

The debate continued outside the courtroom, as lawyers and scholars weighed in at the court of public opinion. Robert S. Chang, a professor at Seattle University School of Law, said the president's policy dehumanizes transgender people.

"Transgender soldiers are already serving in the U.S. military, fighting the battles of America; their service and sacrifice establishes clearly their claim on America," said Change, founding executive director of the Fred T. Korematsu Center for Law and Equality at the Seattle law school.

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