thursday, 23 november of 2017

Federal judge blocks Trump´s transgender military ban

The US District Court for the District of Maryland on Tuesday granted a preliminary injunction against President Donald Trump's transgender military ban.

The development follows another preliminary injunction partially granted by the US District Court for the District of Columbia in October, which partially blocked portions of the ban, but allowed the portion of the directive halting expenditures for sex reassignment surgery to remain in effect. This injunction is more expansive in scope and additionally bars that latter portion left undisturbed by the federal court in DC.

Noting that "a capricious, arbitrary, and unqualified tweet of new policy does not trump the methodical and systematic review by military stakeholders qualified to understand the ramifications of policy changes." Judge Marvin J. Garbis found a preliminary injunction to be merited because:

[Service members are] already suffering harmful consequences such as the cancellation and postponements of surgeries, the stigma of being set apart as inherently unfit, facing the prospect of discharge and inability to commission as an officer, the inability to move forward with long-term medical plans, and the threat to their prospects of obtaining long-term assignments.
Garbis also reasoned that "waiting until after the Directives have been implemented to challenge their alleged violation of constitutional rights only subjects [the service members] to substantial risk of even greater harms."

The plaintiffs successfully argued against the government's motions to dismiss two of the three causes of action on Fifth Amendment equal protection and due process grounds. However, the court dismissed without prejudice the third cause of action filed on statutory grounds under 10 U.S.C. § 1074, titled "Medical and dental care for members and certain former members", stating: "Plaintiff’s allegations in support of their statutory claim are conclusory. [...] Perhaps Plaintiffs could assert an adequate and plausible statutory claim. They have not done so here." Garbis wrote that the plaintiffs may amend their their cause of action to correct the deficiencies and refile.

The ACLU, which represented the six service members welcomed the injunction stating: "Today is a victory for transgender service members across the country. [...] We're pleased that the courts have stepped in to ensure that trans service members are treated with the dignity and respect they deserve."

The Justice Department, however, expressed disappointment with the ruling stating: "We disagree with the court's ruling and are currently evaluating the next steps." The DOJ added that the ruling was premature because the Defense Department was still reviewing its transgender policy.

(Published by Jurist - November 22, 2017)

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