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Judge skewers DOJ lawyer over transgender military ban

homesafetytechpros — Wed, 23 Apr 2025 01:29:32 +0000

President Donald Trump at a press conference at the White House in Washington on February 27, 2025 (Yuri Gripas/Abaca/Sipa USA; via AP Images)

In what might seem like a weeks-removed bout of deja vu, a lawyer representing the Trump administration was harshly quizzed — and seemingly hardly believed — by a judge on Tuesday during oral arguments over the Pentagon’s planned transgender ban on service members.

During the hearing, Circuit Judge Cornelia T.L. Pillard, a Barack Obama appointee, was obviously and audibly askance of arguments advanced by U.S. Department of Justice attorney Jason Manion.

“How can you say that?” the judge asked the DOJ attorney at the outset — scorn apparent — taking issue with the government’s perspective out of the gate.

Manion, for his part, is no stranger to judicial dressing-downs.

On Jan. 28, Nicolas Talbott and several others filed their complaint with the U.S. District Court for the District of Columbia. The lawsuit alleges the ban on transgender service members violates the Due Process clause of the Fifth Amendment by discriminating against people “based on their sex” and “their transgender status.”

On March 12, U.S. District Judge Ana C. Reyes, a Joe Biden appointee, mercilessly lambasted Manion and other DOJ counsel for what she saw as problems with their basic competence, middling legal analysis, lack of preparation, intellectual honesty, and more.

On March 19, Reyes issued a scathing order granting a preliminary injunction halting the policy. She said the ban was “soaked in animus and dripping with pretext” and found it unconstitutionally violated equal protection laws by discriminating based on sex and status.

On Tuesday, the government aimed to overturn the district court’s ruling by beginning with an argument that Reyes had, quite simply, far overstated what the Pentagon’s planned-but-paused policy would do.

“This policy, like the policies that every other administration in the last 10 years or so has done, focused on a medical condition and related medical treatments, focused on gender dysphoria and it focused on medical treatments related to that condition,” Manion said. “It was just clearly erroneous for the district court to treat this policy as being a broader policy than it was.”

The outspoken judge rejected that characterization.

“How can you say that? Pillard asked. “When somebody who has no medical condition — somebody who has never been diagnosed with gender dysphoria but who has transitioned and who lives in a sex other than their birth sex — is explicitly banned by the policy? It’s clearly banning all transgender persons.”

The DOJ attorney again pushed back.

“Each of the policies that existed before — and this policy as well — allow people who identify as something other than their sex to serve in their sex,” Manion told the court.

For a while, the judge and the lawyer sparred over definitions used by experts cited by both the government and the transgender service member plaintiffs — about who qualifies as transgender, and what transitioning might mean, in terms of the proposed ban.

Eventually, the judge appeared weary of the definitional battle and sought to paraphrase what she viewed as the DOJ’s position.

“Your argument that this is not a ban on transgender service is that you can serve as a transgender person as long as you don’t serve as a transgender person,” Pillard said, pressing Manion on the point.

“I certainly wouldn’t put it that way,” the attorney said.

The government’s lawyer went on to say the policy “targets a subset” of transgender individuals — specifically those who are diagnosed with gender dysphoria. This diagnosis, Manion ventured, comes with “significant clinical distress” and “impairment of functioning” in “important areas.”

Two other judges on the three-judge panel in the D.C. Circuit, Gregory G. Katsas and Neomi Rao, largely kept their thoughts to themselves and did not ask nearly as many questions as Pillard.

Katsas, however, did interject when Manion brought up an argument about the standard of review. The attorney said the equation for the appellate court was not a typical question about transgender rights because the military is involved, which places the issue as more of a question about executive power than the constitutional rights of a group.

Rao quickly followed up to steer the DOJ attorney toward why the appellate court might be able to reject the lower court’s findings of fact that the policy is motivated by animus.

“Even if you are required to defer to the factual view that there was some animus motivating this decision, I don’t think it resolves the legal question of whether you can shortcut the deference that would normally apply to this decision.” Manion essayed.

The woman chosen by President Donald Trump to fill the seat vacated by Justice Brett Kavanaugh seemed a bit surprised by this answer.

“Are you conceding that there was animus?” Rao answered.

The government lawyer answered in the negative.

“It’s certainly clear error to find that the policy can’t be explained by any reason other than animus,” Manion went on. “The relevant question is whether the policy can be explained by any reason other than animus.”

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The DOJ lawyer reiterated previous in-court and motions arguments that the 2018 U.S. Supreme Court case of Trump v. Hawaii is controlling.

In that case, the nation’s highest court discounted concerns about anti-Muslim or anti-Islam bias when upholding the constitutionality of the first Trump administration’s travel ban, which almost entirely targeted Muslim-majority countries. Despite Trump calling the policy a “Muslim ban” during his 2016 presidential campaign, the majority looked to, and credited, the text of the policy itself instead of Trump’s verbiage.

On Tuesday, Pillard refused to countenance the comparison, noting that the high court also credited the travel ban for covering a tiny amount of the global Muslim population and for being enacted based on “careful study” from counterterrorism experts.

“Here we have something altogether different,” the judge said. “We have a sitting president issuing an executive order that has animus on its face, not directing anyone, any panel of experts, to study this issue, but simply directing the Secretary of Defense to implement a ban on transgender — on service by transgender persons,” Pillard said. “And within a month, the Secretary of Defense doing so with no further study.”

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Top military lawyers are fired; will replacements allow more aggressive battlefield approach?

homesafetytechpros — Sun, 09 Mar 2025 01:58:46 +0000

Military Law

Top military lawyers are fired; will replacements allow more aggressive battlefield approach?

By Debra Cassens Weiss

February 24, 2025, 10:03 am CST

Secretary of Defense Pete Hegseth speaks during a press conference in Poland on Feb. 14. (Photo by Jakub Porzycki/NurPhoto via the Associated Press)

The secretary for the U.S. Department of Defense is looking for new judge advocates general for the Army, the Navy and the Air Force, he said in an announcement Friday.

Secretary of Defense Pete Hegseth fired the lawyers currently in those top JAG positions, the New York Times reports, representing “an opening salvo in his push to remake the military into a force that is more aggressive on the battlefield and potentially less hindered by the laws of armed conflict.”

Commenting Friday on X, formerly known as Twitter, Rosa Brooks, a professor at the Georgetown University Law Center, said firing the top lawyers is “what you do when you’re planning to break the law: You get rid of any lawyers who might try to slow you down.”

On Fox News Sunday, Hegseth was asked for his response to Brooks, report Law & Crime and the Daily Beast.

“We want lawyers who give sound constitutional advice and don’t exist to attempt to be roadblocks to anything that happens in their spots,” he said.

The New York Times identified the fired lawyers as Lt. Gen. Joseph B. Berger III, Air Force Lt. Gen. Charles Plummer and Rear Adm. Lia M. Reynolds.

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Transgender service members aim to nix Trump’s military ban

homesafetytechpros — Wed, 05 Feb 2025 00:53:22 +0000

FILE – President Donald Trump throws pens used to sign executive orders to the crowd during an indoor Presidential Inauguration parade event in Washington, Monday, Jan. 20, 2025 (AP Photo/Matt Rourke, File).

A group of named plaintiffs, in what appears to be the first lawsuit of its kind, is suing the Trump administration to put a quick stop to the anti-transgender military service ban.

On Jan. 27, President Donald Trump signed an executive order described as an effort to “ensure the readiness and effectiveness” of the U.S. armed forces – aimed at thinning the military’s ranks of individuals who identify as a gender different than their assigned sex at birth. Similar to an earlier anti-transgender executive order, the military focused policy excoriates “radical gender ideology.”

Trump also directly rescinded a previous executive order signed in January 2021 allowing transgender individuals to serve in the military.

On Jan. 28, lead plaintiff Nicolas Talbott and seven others filed their complaint with the U.S. District Court for the District of Columbia. After a brief procedural hiccup, the case was assigned to Joe Biden-appointed U.S. District Judge Ana C. Reyes.

On Monday, the plaintiffs filed a motion for a preliminary injunction – a form of relief that could very well stop the transgender ban from going into effect pending the outcome of the broader case. The judge scheduled a hearing to hash out that motion on Feb. 12.

On Tuesday, aiming for somewhat quicker action, the plaintiffs filed an emergency application for a temporary restraining order.

“Plaintiffs are six transgender service members and two transgender individuals actively pursuing enlistment,” the motion reads. “The ban will inflict irreparable injuries on Plaintiffs and other prospective and current transgender service members. They will be discharged or barred from service, lose their means of supporting themselves and their families, and stripped of the honor, status, and benefits associated with uniformed service to their country.”

The plaintiffs say the swift actions of the U.S. Department of Defense have necessitated their latest, emergency filing.

“[A] transgender service member is already being administratively separated,” the motion goes on. “Even after Plaintiffs filed their complaint and after the Court informed counsel for the parties that it expected expedited briefing on a preliminary injunction application, this service member was presented with an ultimatum: that she must be classified and treated as a man—i.e., not be transgender—or be separated.”

More Law&Crime coverage: ‘Practical reality’: Trump admin dismisses concerns about violence against transgender women in men’s prisons because ‘vast majority’ are already in all-male lockups

In other words, the Trump administration is moving much faster than the court system in order to effectuate preferred policy goals.

The filing relays the story of Miriam Perelson, who is not a party to the current action, and how her unit is dealing with her identifying as a transgender woman. The plaintiffs cast the issue – and the concomitant legal battle – about something immutable.

From the motion, at length:

Requiring Miriam, a transgender woman, to serve as a man is the same as saying she cannot serve at all, since it requires her to stop being transgender, which she cannot do because she is transgender. When her commanding officer asked her to sign a statement affirming that she would agree not to be transgender, she did not sign because she is transgender. When she informed her officer that she could not sign the document, she was informed she would be administratively separated.

The preliminary injunction proceedings, the plaintiffs argue in no uncertain terms, are simply not happening fast enough.

“Urgent relief is required to prevent Plaintiffs and other service members from being deprived of their careers and suffering dehumanizing treatment based solely on their transgender status while the Court considers the Application for Preliminary Injunction,” the motion for the restraining order goes on.

To hear the plaintiffs tell it, the Trump administration’s policy is a violation of the Fifth Amendment’s equal protection clause.

“The President’s categorical exclusion of transgender people lacks any rational basis whatsoever,” the motion argues. “By singling out transgender people for differential treatment, the President’s Order creates a sex-based classification that is subject to, and fails, intermediate equal protection scrutiny.”

The executive order is constitutionally impermissible because it “targets transgender status itself,” according to the plaintiffs, and goes on to discriminate in multiple separate ways.

First, the plaintiffs claim an “explicit classification on the basis of transgender status is inherently a sex-based classification,” which is strongly disfavored by the U.S. Supreme Court. In the past, the nation’s high court has recognized, and the plaintiffs note: “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The plaintiffs, citing from the same ruling, go on to explain that people cannot be penalized for sex-based traits or actions.

“[T]he Order also discriminates based on sex by requiring that all service members conform to the sex stereotypes associated with their birth sex,” the motion continues. “By prohibiting military service by transgender individuals because they do not conform to sex stereotypes, the Order impermissibly discriminates based on sex.”

On Tuesday afternoon, the court held a preliminary hearing on the request for a temporary restraining order. The proceeding ended with no conclusion. The judge ordered the parties to produce a joint status report by late Wednesday afternoon. A second hearing on the emergency application is currently slated for Friday.

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Pentagon ‘grossly undercounted’ Jan. 6 military arrests: AP

homesafetytechpros — Mon, 02 Dec 2024 00:46:43 +0000

FILE – Violent rioters loyal to President Donald Trump storm the Capitol in Washington on Jan. 6, 2021. (AP Photo/John Minchillo, File)

A study on extremism in the military that was commissioned by the Department of Defense in wake of the Jan. 6 attack has been called out by the Associated Press for using old data that “grossly undercounted” the number of active and veteran members arrested for their involvement in the 2021 Capitol assault.

The Pentagon-funded study has been propped up as proof of extremism not being a problem in the armed forces by media outlets and political talking heads since its release in Dec. 2023, including Defense Secretary nominee Pete Hegseth, who is referenced by the AP in its Nov. 26 report on the alleged DOD inaccuracies.

“Study Disproves Military Extremism Problem,” a headline said from Fox News and Hegseth on Jan. 4, 2024, per the AP. “They knew this was a sham,” Hegseth reportedly told a live Fox audience, in reference to assertions made by military leaders like Defense Secretary Lloyd Austin, saying the Jan. 6 attack was a “wake-up call” to the extent of right-wing extremism in the U.S. military.

“Then they do the study, which confirms what we all know,” Hegseth reportedly said.

The Wall Street Journal cited the DOD study — titled, “Prohibited Extremist Activities in the U.S. Department of Defense” — in an opinion piece with a headline that said, “The Military’s Phantom ‘Extremists.”” Republicans on the House Armed Services Committee pointed to it on social media, saying it was evidence of a “witch hunt.”

Biden wrongly targeted our servicemembers w/ a divisive & political witch hunt on ‘extremism’.

This report found that polarization & division in the ranks may pose a greater risk than radicalization.

Biden’s divisive far-left politics don’t belong at DoDhttps://t.co/UPbXaHwLX6

— Armed Services GOP (@HASCRepublicans) January 3, 2024

The AP, however, found through an investigation of the Institute for Defense Analyses and its researchers who worked on the DOD study that their information was “old” and inaccurate.

According to the AP, report authors for IDA did not use new data that was readily available to them and instead based their “foundational conclusions” on Jan. 6 arrest figures that were allegedly more than two years out of date by the time the findings were released last December. “As a result, the report grossly undercounted the number of military and veterans arrested for the Jan. 6 attack and provided a misleading picture of the severity of the growing problem,” the AP reports.

According to the IDA study, “of the more than 700 federal cases in which charges were publicly available a year after these events [Jan. 6], fewer than ten were for individuals who were serving in the military” at the time of the Capitol attack.

“Based on the size of the military relative to the general population and considering the rate of charges for males and females, we find no evidence that service members were charged at a different rate than the members of the general population,” the study says. “Nearly a year after the incident, there were 704 federal cases where charges are publicly available.”

According to IDA, 82 of the 704 people arrested had military backgrounds, or 11.6% of the total arrests. The institute used data compiled between June 2021 and June 2022.

The AP reports that the number of arrestees had nearly tripled when the IDA study was released last December, with 209 people with military backgrounds being listed as arrestees that month — and more than 230, or around 18%, currently.

The IDA study admitted that there had been “some indication” that the numbers were “slightly higher” and “growing” due to vets being charged at later dates, but it insisted that there was “no evidence” the same could be said about active duty troops. The institute claimed there was “no evidence” of participation in violent extremist events by DOD civilians and defense contractor employees, but that too was wrong, according to the AP.

Records obtained by the outlet show allegations being hurled at multiple contractors and at least one civilian employee. One alleged report was made in January 2021, nearly three years before the IDA study was published. It claimed a contractor at the Joint Artificial Intelligence Center had called into meetings while they were at the Jan. 6 attack. The complaint reportedly led to the contractor’s termination.

“It’s a shame that a shoddy report by the Pentagon gives an opening to views like Hegseth’s and will perpetuate a head-in-the-sand approach to a serious national security issue,” Heidi Beirich, co-founder of the Global Project Against Hate and Extremism, told the AP. “Making light of the problem is ultimately a threat to the security of the American people, and politicizing the problem, which Republicans have done over recent years, means more violence.”

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The military is failing to comply with federal law in sexual assault cases, new watchdog report finds

homesafetytechpros — Sat, 30 Dec 2023 17:27:09 +0000

The military is failing to comply with federal law in sexual assault cases, new watchdog report finds – CBS News

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Nearly a decade after Congress mandated the use of investigators and prosecutors who are specifically trained to handle sexual assault and domestic violence cases, a draft of a new Pentagon report obtained by CBS News reveals the military is failing to comply with federal law that requires it to give survivors support.

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CBS News investigates: Sexual assault survivors say military failed to protect victims

homesafetytechpros — Fri, 29 Dec 2023 04:44:46 +0000

CBS News investigates: Sexual assault survivors say military failed to protect victims – CBS News

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Over the past year and a half, CBS News has spoken to nearly two dozen survivors from all branches of the armed service who say their allegations were brushed aside — or even met with retaliation. Norah O’Donnell reports.

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