When a federal judge in Seattle holds a hearing Tuesday over President Donald Trump’s transgender military ban, she will face an odd question: Does the Trump administration even have a policy banning transgender troops right now?



No, not in writing. Not anywhere, technically.

Neither the Justice Department nor the Pentagon could cite such a policy when asked repeatedly by BuzzFeed News if one existed, and none has been posted online or filed in court.

This runs counter to briefs filed by Justice Department lawyers Friday in federal courts in both Seattle and Washington, DC, which said dozens of times there was a “new policy.”

Maj. David Eastburn, a spokesperson for the Department of Defense, did not cite any policies in an email asking for them Tuesday, instead saying officials are abiding by court orders from last fall that allow transgender troops to serve for now.

A Justice Department spokesperson simply referred back to court briefs that say there is a “new policy.”

The administration created the situation Friday night, when Trump rescinded his August memo that banned transgender military service. Federal lawyers simultaneously released recommendations from Defense Secretary James Mattis to ban most transgender troops and a 44-page Pentagon report laying out how and why the government should ban transgender soldiers.

Although Trump’s order gave Mattis and the Department of Homeland Security unfettered license to create rules they want, Mattis’s recommendations are not codified in any rule, and the Pentagon hasn’t yet issued any policy implementing the recommendations.

“There is no policy,” Peter Perkowski, a lawyer for OutServe-SLDN, which is representing transgender soldiers in the Seattle lawsuit, told BuzzFeed News. “It is strange that the government, in its submission to the court, was referring to this as the Mattis policy, but Mattis didn't promulgate anything.”

Instead, the US military is left with a sort of Schrödinger’s cat of would-be policies: The ban doesn’t technically exist, while simultaneously existing as a set of possible rules.

Much like Trump’s travel ban, each new permutation of the transgender ban has raised questions about what it is intended to do and what, legally, could take effect right away.

“Just like in the travel ban cases, they kept issuing different orders, and then the question became whether it was covered by this previous injunction,” Perkowski said.

What exists with the transgender ban is even more complicated — a vacuum created by the lack of a policy, which a lawyer for the transgender troops called a “blank space.” That gap, though, could just be a sign of a new legal strategy.