Justice Department attorney Ryan Parker did not have an easy case today attempting to argue in favor of President Trump's transgender military ban in US District Judge Marsha Pechman's courtroom.
The plaintiffs in the case, which now include both transgender service members and the state of Washington, filed the lawsuit nearly eight months ago after Trump tweeted that transgender individuals would no longer be allowed to serve in the military.
On Friday, the White House issued a new policy, including a study from the Pentagon and a recommendation from Defense Secretary James Mattis, backing up Trump's original tweet.
During a hearing in Seattle's federal court today, Justice Department attorney Ryan Parker attempted to argue that because of the new policy (which ultimately resembles the old one), the plaintiffs' case against the government over the old transgender military ban memo was moot. But Judge Pechman, who had earlier issued a preliminary injunction finding that the old ban caused immediate harm to transgender individuals, did not appear to buy that argument.
"I've read your brief," Judge Pechman at one point told Parker. "I can't find any factual underpinnings in what you've supplied to me in the brief."
Pechman also criticized Parker and the Justice Department for failing to respond to the state of Washington's arguments made in a separate brief altogether, failing to put their briefs in the right font, and failing to make their arguments outside of their briefs' footnotes. She even once considered holding the Feds in contempt of court. Perchman also grilled Parker for not including arguments about the legitimacy of the Twitter-announced ban in the existing briefs, and merely focusing on the last-minute policy issued on Friday.
After all: "If this case is decided merely on the reading of the prohibitions," Judge Pechman quipped, "what facts do you need?"
Pechman now asking lawyers to write up another brief on the new policy. Also says feds have been using the wrong font and need to make their arguments in the body of the brief, not the footnotes.
— Sydney Brownstone (@sydbrownstone) March 27, 2018
Parker tried to argue that the new policy issued on Friday does rest on considered military judgment, one that argues that "gender dysphoria" is a disqualifying medical condition from military service. But lawyers for Lambda Legal, representing the plaintiffs, argued that dysphoria was nothing but a proxy for discrimination—and that the government didn't have any evidence that being transgender would inhibit the ability to deploy more than any other mundane reason soldiers typically give for postponing deployment. Judge Pechman additionally raised the question of how being a transgender soldier going through a transition would be different from a woman who gave birth and needed time to recover. Lambda Legal also stressed that the military has existing rules about transgender people who must already have settled into their gender identity for a period before being allowed to serve.
But Parker also said that transgender soldiers could possibly have an impact on "unit cohesion." This claim, Lambda Legal argued, lacked any evidence, and was also used to justify segregation between African American and white soldiers in the past.
But while the Justice Department argued that Judge Pechman should toss the case because it didn't directly address the policy issued by the White House on Friday, lawyers for the plaintiffs say their case does address Friday's policy.
"The new report that was filed on Friday night, not only is there not a procedural rule for it, but it is legally irrelevant," Lambda Legal lawyer Natalie Nardecchia told the court. "It is post hoc evidence that cannot legally suffice. When the government discriminates against people, they need a reason. They can't say 'We'll go study it after the fact and find a reason.'"
Judge Pechman could issue a ruling on the constitutionality of the transgender military ban within the coming month, which would take effect nationwide.