WASHINGTON – A gay former Army lieutenant who handcuffed himself to the White House fence to protest the military’s “don’t ask, don’t tell” policy may be closer to having charges against him dismissed after a judge put his trial on hold Wednesday.

Dan Choi, a West Point graduate who was dismissed from the Army after revealing that he is gay, has been on trial in federal court in Washington since Monday. A government prosecutor says he failed to obey an order to leave the White House in November 2010 when he and 12 others handcuffed themselves to the fence.

Police eventually removed the protesters using bolt cutters. If convicted Choi faces a fine and up to six months in jail.

Choi and his attorneys claim he is being harshly prosecuted because he is gay and outspoken. They want the charge against him dismissed.

On Wednesday, the judge presiding over the current case said he believes Choi has shown, at least preliminarily, that he is being treated differently because of the subject of his protests.: “don’t ask, don’t tell.” President Barack Obama put an end to the policy in July. As of Sept. 20, gay service members can acknowledge their sexual orientation openly.

Magistrate Judge John M. Facciola said the testimony presented at trial suggested that “the nature of his speech or what he said,” meant Choi was prosecuted differently, according to a transcript of the proceedings.

As a result of Facciola’s statements, an attorney for the government, Angela George, said she planned to have the judge’s actions reviewed by higher authorities, and Facciola put the trial on hold for 10 days.

In papers filed with the court, George says Choi was treated no differently than other protesters.