White House cannot shield information on transgender military ban: judge

[August 16, 2018]  By Jonathan Stempel

(Reuters) - A federal judge in Baltimore rejected the Trump administration's request to shield information it employed when deciding to ban transgender people from the U.S. military.

The decision on Tuesday by U.S. Magistrate Judge A. David Copperthite came in a lawsuit by the American Civil Liberties Union on behalf more than one dozen transgender people serving or who want to serve in the military.

Copperthite declined to decide whether President Donald Trump deserved a protective order for his own communications, pending a ruling on whether to dismiss Trump as a defendant.

Andy Reuss, a spokesman for the U.S. Department of Justice, declined to comment.

The lawsuit is one of several challenging a ban that Trump announced on Twitter on July 26, 2017, citing "consultation with my Generals and military experts" and the "tremendous medical costs and disruption" of transgender service members.

Several federal judges have blocked that ban, which reversed a year-old Obama administration policy, or a narrower version announced in March 2018.

The military began accepting transgender recruits this year even as the White House continued to litigate.

Trump had tweeted less than a month after Defense Secretary James Mattis delayed by six months a decision whether to admit such recruits, pending a review of its potential impact.

Mattis' predecessor, Ash Carter, had said transgender people could serve if they demonstrated their military readiness.

In Tuesday's decision, Copperthite rejected the defendants' argument that the "deliberative process privilege" justified shielding documents sought by the ACLU.

Members of the Texas National Guard wait at Sergeant Tomas Garces Texas Army National Guard Armory in Weslaco, Texas, April 12, 2018. REUTERS/Loren Elliott REUTERS/Loren Elliott

Finding it hard to believe that "circumstances regarding readiness and deployability have changed so dramatically," the judge said the documents were likely to show the government's intent behind the ban, and whether it was for military purposes or "purely for political and discriminatory purposes."

Copperthite also said Trump's tweets "put the President front and center as the potential discriminating official," but that presidential confidentiality deserved "the greatest possible protection," justifying a delay in a ruling on Trump.

ACLU lawyer Josh Block said the decision means the administration must set forth its "actual reasons" for the ban.

"It is difficult to believe that concerns about fitness and deployability changed so dramatically in such a short time," Block said in an interview. "It suggests they may have been a pretext for a discriminatory purpose."

The case is Stone et al v Trump et al, U.S. District Court, District of Maryland, No. 17-02459.

(Reporting by Jonathan Stempel in New York; Editing by Dan Grebler)

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