Gender Nation: Military Ban is stayed, once again

Gender Nation is a bi-weekly column by Gwendolyn Ann Smith, the founder of the Transgender Day of Remembrance, reviewing news affecting the trans, intersex, and genderqueer community.

Military Ban is stayed, once again

In yet another rebuke of President Donald Trump and Vice President Mike Pence, a federal judge has once again barred the implementation of the administration’s ban on transgender people serving openly in the United States Military.

The Government had been arguing that their ban on transgender service members was a new one, claiming that the previous ban was revoked, and the new ban replaced it fully. In reviewing the ban, however, U.S. District Judge Marsha Pechman disagreed, declaring that the new ban, “did not substantively rescind or revoke the ban, but instead threaten the very same violations that caused it and other courts to enjoin the ban in the first place.”

In reaching this decision, Judge Pechman went a step further, declaring that transgender people themselves were a protected class and that the actions against the military ban issued in December of last year should remain in place.

In discussing the history of discrimination faced by transgender people in the face of this ban, Judge Pechman said, “the history of discrimination and systemic oppression of transgender people in this country is long and well-recognized. Transgender people have suffered and continue to suffer endemic levels of physical and sexual violence, harassment, and discrimination in employment, education, housing, criminal justice, and access to health care.” Meanwhile, Judge Pechman also concluded that “discrimination against transgender people clearly is unrelated to their ability to perform and contribute to society.

Meanwhile, Judge Pechman did not focus on the current justifications of the ban, largely due to the haste in which they were presented to her. While lawmakers are questioning exactly who is behind the current version of the ban, Judge Pechman essentially left this up to the President himself.

“As no other persons have ever been identified by defendants — despite repeated court orders to do so — the court is led to conclude that the ban was devised by the president and the president alone,” said Judge Pechman.

It is widely believed that the ban may have come from Vice President Pence, and was drafted with the assistance of Ryan T. Anderson of the Heritage Foundation and Tony Perkins of the Family Research Council.

While we are far from seeing an end to the efforts of this administration against transgender service members — and all transgender people — this ruling is a significant setback on the current ban, and may point to further difficulties in the courts. It also points to how vital it is that attempts to fill the courts with religious fundamental judges need to continue to be resisted.

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Gwen Smith has been a transgender advocate for more than two decades. She is the writer of the Transmissions column for the Bay Area reporter, now in its 15th year. She is also the founder of the Transgender Day of Remembrance an early transgender Internet pioneer, and the managing editor for