Pentagon 'cherry picked' studies to support transgender service member ban, judge says

A federal judge on Wednesday signaled that she was deeply skeptical that the Pentagon's handling of transgender service members complies with federal law, grilling a government attorney for hours about the scientific basis for the decision, its impact on military readiness, and the alleged harms to unit cohesion.

U.S. District Judge Ana Reyes said she plans to issue a ruling on the policy as early as next week, but appeared to rebuff most of the arguments defending the policy made by a DOJ attorney, who frequently appeared to be at a loss for words regarding how to respond to the judge's questions.

The Pentagon's new policy to separate transgender U.S. service members from the military is facing its first legal test as Judge Reyes considers issuing an order blocking the policy from taking effect.

"Let's just use the Secretary of Defense [Pete] Hegseth's own words: Transgender people lack warrior ethos, are liars, lack integrity, are not humble, are selfish and can't meet physical mental fitness requirements," Judge Reyes said during Wednesday's hearing. "You would agree with me that calling people liars and lacking integrity and not able to meet rigorous standards for discipline is insulting -- yes or no, or you can't say?"

"Maybe," the attorney responded, arguing that Trump's executive order and Hegseth's directive don't use that exact language.

"So, people with gender dysphoria can't be honest, humble, or have integrity. You think that's demeaning to people with gender dysphoria?" Judge Reyes later asked.

"I can't answer that question," the attorney responded.

Judge Reyes similarly pressed the government to explain the Pentagon's concerns about transgender soldiers facing a higher risk of suicidal ideation, saying the government fundamentally misunderstood the studies that were cited to defend the policy. At one point in the hearing, she considered ordering the attorneys to read the studies, which the attorneys admitted they had never read.

"Do you know why people with transgender, with gender dysphoria, have higher rates of suicide ideation?" she asked. "It's because they face such stigma and discrimination in society. All the studies show that transgender people and people with gender dysphoria are not more inherently subject to suicide or likely to have suicide ideation. That's not it. It's not biological, it's not inherent."

"I assume you would agree with me with the following: The answer to suicide ideation caused by discrimination is not further discrimination, right?" the judge asked.

An attorney for the DOJ responded by arguing that while military leadership has addressed the treatment of transgender soldiers differently over the years, the court should trust the Defense Department to know what's best for its soldiers.

"That is a policy choice that is for the military to make, and it's something to which this Court should defer," he said.

Earlier during the hearing, Judge Reyes said that the government "egregiously misquoted" and "cherry picked" scientific studies to incorrectly assert that transgender soldiers decrease the readiness and lethality of the military.

She also repeatedly suggested that the policy unfairly targets a class of people that the Trump administration dislikes.

"The question in this case is whether the military under the equal protection rights afforded to every American under the due process clause of the Fifth Amendment, if the military ... can do that and targeting a specific medical issue that impacts a specific group that the administration disfavors," she said.

Judge Reyes also pressed a DOJ attorney to identify any other similar medical issues that has prompted a similar response from the Department of Defense.

"Identify for me a single other time in recent history where the military has excluded a group of people for having a disqualifying issue, because I can't think of one," Judge Reyes asked.

The attorney answered that the military applied a similar policy for soldiers who declined to take the COVID-19 vaccine, prompting an incredulous Judge Reyes to ask anyone in the gallery to raise their hand if they had gotten COVID.

"Lots of people raise their hands, right?" Judge Reyes said. "All different kinds of people ... so it wasn't just aimed at getting rid of one group of people."

The plaintiffs have argued that the DOD's policy -- which was finalized in late February and bans most transgender service members from serving with some exceptions -- violates the Fifth Amendment's right to equal protection and causes irreparable harm by denigrating transgender soldiers, disrupting unit cohesion and weakening the military.

"This case is a test of the core democratic principle that makes our country worth defending -- that every person is of equal dignity and worth and is entitled to equal protection of the laws," the plaintiffs argued.

Lawyers with the Department of Justice have defended the policy by arguing the court should not intervene in military decision-making, describing gender dysphoria as a condition that causes "clinically significant distress or impairment in social, occupational, or other important areas of human functioning."

"DoD has been particularly cautious about service by individuals with mental health conditions, given the unique mental and emotional stresses of military service," government lawyers argued.

During a hearing last month, Judge Reyes -- a Biden appointee who was the first LGBT judge on the D.C. District Court -- signaled deep skepticism with the government's claim that transgender service members lessen the military's lethality or readiness, though she declined to intervene until the DOD finalized their policy.

When the policy was formalized last month, she quickly ordered the government to clarify key tenets of their policy, including identifying what "mental health constraint" other than gender dysphoria that conflicts with the military's standards of "honesty, humility, and integrity."

She also raised doubts about the government's claims about the exceptions to the policy, flagging on the court's docket a recent DOD social media post that "transgender troops are disqualified from service without an exemption."

The hearing comes amid an increasingly hostile relationship between Judge Reyes and the Department of Justice.

After Judge Reyes excoriated a DOJ lawyer last month during a hearing in the case, the Department of Justice filed a complaint with an appeals judge about what they alleged was Reyes' "hostile and egregious misconduct."

Attorney General Pam Bondi's chief of staff Chad Mizelle alleged that Reyes demonstrated a political bias, compromised the dignity of the proceedings and inappropriately questioned a DOJ attorney about his religious beliefs.

"At minimum, this matter warrants further investigation to determine whether these incidents represent a pattern of misconduct that requires more significant remedial measures," Mizelle wrote.