On Friday, two more federal courts joined the choir of judges who have rejected President Trump’s ban on transgender people serving in the military, including a ruling in a fourth lower court and a second appeals court. All of the courts have held not only that the ban cannot be enforced, but that the Pentagon must revert to the status quo, including beginning to allow trans people to enlist starting January 1, just over a week from now.
In a case out of California (Stockman v. Trump), U.S. District Judge Jesus Bernal, an Obama appointee, became the fourth federal judge to rule against Trump’s ban. Because three decisions preceded his own, he borrowed greatly from their reasoning, but offered a few of his own swipes against the ban.
Bernal’s decision focuses in on the way the Trump administration attempted to create confusion about what the ban actually means in an attempt to argue that the plaintiffs, which include three young trans people hoping to enlist and several servicemembers serving both openly and not openly, faced no clear risk of injury. Speaking about the potential recruits, Bernal said that the likelihood they face a barrier to joining is “concrete, particularized, imminent, and not at all hypothetical.” And as to the current servicemembers who worry about losing their jobs, Bernal said their “fear is appropriately born out of President Defendant Trump’s Twitter Proclamation, the Presidential Memorandum, and the Interim Guidance.”
Bernal also noted that no solution the court can offer could remedy the harm the ban has already done to transgender people:
Plaintiffs allege, and the Court agrees, the ban sends a damaging public message that transgender people are not fit to serve in the military. There is nothing any court can do to remedy a government-sent message that some citizens are not worthy of the military uniform simply because of their gender. A few strokes of the legal quill may easily alter the law, but the stigma of being seen as less-than is not so easily erased… This ban singles out transgender individuals for unequal treatment solely because of their transgender status. Plaintiffs have appropriately demonstrated irreparable injury.
Like the three judges before him, Bernal ordered that no one can be denied the opportunity to join the military nor can anyone be removed from the military simply because they are transgender.
On Friday, the United States Court of Appeals for the D.C. Circuit also became the second appeals court to uphold the injunctions against the ban, following a similar ruling by the Fourth Circuit on Thursday. Unlike the brief order from the Fourth Circuit, the D.C. Circuit had more to say on the matter.
After losing in a lower court in D.C., the Trump administration filed an emergency motion for a stay of that ruling so that it would not be forced to begin accepting transgender servicemembers who enlist. The Circuit Court denied that stay, noting that the administration’s arguments were “particularly flawed” given that one of the plaintiffs in that particular case, Midshipman Regan Kibby, is enrolled at the Naval Academy, and cadets and midshipmen at the military academies are considered “active duty.” “Granting a stay as to transgender individuals within the United States military academies,” the decision explains, “would directly impede and impair their advancement through the Midshipman and Cadet ranks towards commissioning as officers and their current and immediate career and educational progression.”
The Court also seemed to be convinced that the administration was simply fishing for an excuse to keep transgender servicemembers out when it claimed to need additional studies. The whole reason the military had begun the process of opening up to transgender people serving is because a massive study had already been conducted that found that was in its best interest, so it makes no sense that another study would be necessary:
Appellants have failed to demonstrate that the study they wish to undertake is motivated by any necessity separate and apart from compliance with the Presidential Memorandum. Nor do they identify what further information is needed beyond the extensive study already undertaken and the steps already completed for the accession of transgender individuals. Appellants, in other words, have provided no non-conclusory factual basis or military justification for their apparent position that the extensive study already conducted prior to President Trump’s policy shift was inadequate or otherwise in need of supplementation.
The Court concluded that allowing Trump’s ban to take effect would “directly impair and injure the ongoing educational and professional plans of transgender individuals and would deprive the military of skilled and talented troops, allowing it to take effect would be counter to the public interest.”
It was also sympathetic to transgender people’s desire to serve their nation. “[I]t must be remembered that all Plaintiffs seek during this litigation is to serve their Nation with honor and dignity, volunteering to face extreme hardships, to endure lengthy deployments and separation from family and friends, and to willingly make the ultimate sacrifice of their lives if necessary to protect the Nation, the people of the United States, and the Constitution against all who would attack them.”
At this point, the ban has lost six different times in four different cases. Not one court has even given it the benefit of the doubt that it might have the least bit of merit short of forcing transgender people out of the military for arbitrary, apparently prejudicial, reasons.
And interestingly, the way Trump tried to force the issue with an order may have actually undermined the administration’s desire to keep transgender people from joining. They were supposed to able to begin enlisting on July 1, but Defense Secretary James Mattis delayed that date by six months. Presumably, had Trump not intervened, Mattis could likely have simply delayed it further, but the litigation over the order has deprived him of that ability. Indeed, the D.C. Circuit even noted of Mattis’ original delay, “nothing in that two-sentence press release [delaying accession until January] says or even suggests that the decision was made independently of the President’s direction.”
Short of intervention in the coming week by the Supreme Court, it seems likely that transgender people will be able to begin joining the military on January 1. The Pentagon has been preparing for that eventuality, as have several individuals who plan to enlist that day.