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A federal judge in D.C. peppered Justice Department lawyers with hypothetical questions and video game references as she presided over the second day of oral arguments about the Trump administration's attempt to restrict or ban transgender U.S. service members in the military.
U.S. District Judge Ana Reyes searched in vain for answers to key questions about the nature of a Jan. 27 executive order signed by President Donald Trump that requires the Defense Department to update its guidance regarding "trans-identifying medical standards for military service" and to "rescind guidance inconsistent with military readiness."
Though Trump has instructed that "radical gender ideology" be banned from all military branches, the executive order did not explain how the Pentagon should do this – a lack of clarity that Judge Reyes, a Biden appointee, zeroed in on Wednesday.
For a second day, Judge Reyes led the court through a dizzying-fast line of questions that whipsawed between real and hypothetical, fact and fiction, and was flecked with her own sarcastic quips and observations.
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At one point, Judge Reyes ticked through a list of actions the Trump administration has taken in the past three weeks against transgender persons, including moving to revoke a regulation that ensured trans-identifying individuals have equal access to homeless shelters.
Judge Reyes then asked the Justice Department lawyers to tell her whether, in their view, such actions are discriminatory.
"What do you think Jesus would say," Reyes proceeded to ask, about an action that revokes a transgender person's access to homeless shelters?
"Do you think he’d say ‘sounds right to me’ or ‘WTF, let them in?'"
Jason Lynch, the Justice Department lawyer, told the court that the government did not have an answer as to what Jesus would think.
The pace of the back-and-forth kept both plaintiffs for the transgender service members and the Trump administration's lawyers on their toes, even if it did little, in the near-term, to effectuate an actual court ruling or answer any outstanding questions about the executive order, which is extremely scant on details.
The Trump administration and DOJ lawyers have declined to answer Reyes's questions over whether they can ensure plaintiffs in the case will not be removed from their roles in the military or face discrimination as a direct result of the executive order. The Justice Department, for its part, has described the order as not a ban but a pause, which Lynch said will allow the Defense Department time to align its policy with Trump's order.
During the second day of oral arguments, Reyes appeared exasperated and did little to disguise her displeasure with the order itself, which she described as expressing "unadulterated animus" towards transgender service members.
Reyes did concede that there is an obvious national interest in ensuring the U.S. military is prepared.
"It is the greatest fighting force this world has ever seen, and we want to keep it that way – I've got that part," the judge said. "So how does this executive order effectuate that policy?"
"By telling the Department of Defense to issue a policy within 30 days," Lynch responded.
"Oh, okay, any policy?" Judge Reyes quipped.
She then outlined a hypothetical situation in which she, as head of the Pentagon, issued a policy that all DOD units be equipped with Miss Pac-Man machines – a game she noted she has in her own chambers, and plays from time to time to let off steam.
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"So I'm now Secretary of Defense, I'm thinking about how to make my military best prepared," Reyes said. "And I think people need to let off steam every once in a while. So I'm going to issue a policy that Miss Pac-Man machines should be in every unit."
"Would that be consistent," she challenged Lynch, with the 30-day policy?
Lynch said that would be for the president to decide.
Putting aside whether the order discriminates on the basis of sex, Reyes asked the DOJ attorneys, "you agree the order penalizes on basis of sex, right? How is that not a sex-based classification?"
The judge has made clear she will not rule on the executive action until the Trump administration outlines its policy – including how, or to what extent, transgender service members might be impacted.
But she continued to probe Lynch, whom she reminded Tuesday is technically acting as the legal representative for the Trump administration.
"I mean, I have no one else to ask, right?" Judge Reyes asked Lynch, before amending the question mark in her voice.
"You are the person I have to ask," she told him.
The transgender military policy is slated to take effect Feb. 28, and the court has set a March 3 hearing date to consider the executive order.
Fox News's Jake Gibson contributed to this report.
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