The first openly gay federal judge in D.C. spent hours Tuesday grilling the Trump administration over its attempt to codify terms of service for transgender service members in the U.S. military, seeking to determine the extent of potential harm to transgender military personnel.
At issue is a Jan. 27 executive order signed by President Donald Trump requiring the Defense Department to update its guidance regarding “trans-identifying medical standards for military service” and to “rescind guidance inconsistent with military readiness.”
U.S. District Judge Ana Reyes harshly questioned the Trump administration at length over the order, demanding to know whether it was a “transgender ban” and if the government’s position is that being transgender is an “ideology.”
Civil rights groups this month sued to block the order on behalf of six transgender U.S. service members, arguing that the order is discriminatory and unconstitutional. They alleged it threatens U.S. national security as well as years of training and financial investments by the Department of Defense.
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Tuesday’s court hearing focused largely on how, or to what extent, the order might cause harm to transgender service members. While Trump has instructed that “radical gender ideology” be banned from all military branches, the executive order stopped short of detailing how the Pentagon should do this, prompting a flurry of questions and concerns from plaintiffs and the judge.
Reyes, a Biden appointee, spent much of the hearing Tuesday asking how the order would be implemented and whether the transgender service members named in the lawsuit would be removed from their roles or separated from their units.
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“Can we agree that the greatest fighting force that world history has ever seen is not going to be impacted in any way by less than 1% of soldiers using a different pronoun than others might want to call them,” she asked Lynch.
At another point in the hearing, she challenged lawyers for the Justice Department to find her a declarant or any commissioned officer who would get on the stand and tell the court that they’ve been harmed by the pronoun use of transgender military members.
“I’ll get you a box of cigars,” Reyes told Lynch.
“If you can find someone who will tell me we’re less prepared because we have to use pronouns for a few thousand people … have at it.”
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Lynch noted in response that the administration is awaiting further guidance on the terms of the transgender executive order, which will determine its impact on personnel, including the six transgender plaintiffs named in the case.
That answer did little to assuage concerns of Reyes, who told Lynch the government must inform the court by Wednesday whether they can ensure that the named service members would not be removed from their roles in the military or face discrimination as a direct result of the executive order.
Should they fail to do that, the judge said, the court will reconvene Friday to consider plaintiffs’ request for a temporary restraining order.
Beyond the facts of the case, Reyes did little to disguise her displeasure with the order itself.
At one point during the hearing, she posed a hypothetical to the Justice Department’s attorney by asking, “If you were in a foxhole” with another service member, “you wouldn’t care about their gender ideology, right?”
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She went on to suggest Lynch would be happy to be next to someone with their commendations and bravery.
Lynch agreed he doubted that gender identity would be on his mind in that situation.
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