A federal judge has suspended President Trump’s executive order reinstating a ban on transgender military service. The preliminary injunction will prevent transgender people who are currently serving from losing their jobs, but does open the door allowing openly transgender people to enlist.
In a decision issued Monday, District Judge Colleen Kollar-Kotelly, a Clinton appointee, re-established the status quo from prior to Trump’s order reinstating the ban; the judge, however, allowed for Defense Secretary James Mattis’ June modification, which delayed the transgender enlistment policy. Accession of transgender troops was set to begin July 1, but Mattis instituted a six-month delay on that policy.
The new decision maintains that delay.
Much of the decision focuses on issues of legal standing. The Trump administration had argued that because the ban wasn’t set to take effect until March, it didn’t actually impact anybody yet so nobody had grounds to challenge it. They also implied that because further study was underway, it wasn’t certain the policy even would be implemented according to the schedule laid out in the order. Kollar-Kotelly was not persuaded.
“These arguments, while perhaps compelling in the abstract, wither away under scrutiny,” the decision reads. “The Memorandum unequivocally directs the military to prohibit indefinitely the accession of transgender individuals and to authorize their discharge. This decision has already been made. These directives must be executed by a date certain, and there is no reason to believe that they will not be executed.”
Significantly, however, the decision also notes that, in regards to the lawsuit’s equal protection claims, transgender people are deserving of “heightened scrutiny,” recognizing that they are a historically disfavored class vulnerable to discrimination:
Transgender individuals have immutable and distinguishing characteristics that make them a discernable class. As a class, transgender individuals have suffered, and continue to suffer, severe persecution and discrimination. Despite this discrimination, the Court is aware of no argument or evidence suggesting that being transgender in any way limits one’s ability to contribute to society. The exemplary military service of Plaintiffs in this case certainly suggests that it does not. Finally, transgender people as a group represent a very small subset of society lacking the sort of political power other groups might harness to protect themselves from discrimination.
Additionally, Kollar-Kotelly observes that transgender people are protected not only on the basis of gender identity, but of gender as well:
The Accession and Retention Directives’ exclusion of transgender individuals inherently discriminates against current and aspiring service members on the basis of their failure to conform to gender stereotypes. The defining characteristic of a transgender individual is that their inward identity, behavior, and possibly their physical characteristics, do not conform to stereotypes of how an individual of their assigned sex should feel, act and look. By excluding an entire category of people from military service on this characteristic alone, the Accession and Retention Directives punish individuals for failing to adhere to gender stereotypes.
A service member who was born a male is punished by the Accession and Retention Directives if he identifies as a woman, whereas that same service member would be free to join and remain in the military if he was born a female, or if he agreed to act in the way society expects males to act. The Accession and Retention Directives are accordingly inextricably intertwined with gender classifications.
In other cases related to employment discrimination, numerous federal courts across the country have similarly found that transgender people are deserving of this kind of legal protection, but there is not yet any national precedent. By recognizing transgender people as both their own protected class and a group protected by existing gender protections, Kollar-Kotelly offers one of the most robust forms of this position. In other words, by blatantly targeting transgender people for unwarranted discrimination, the Trump administration may have ultimately opened the door for them to find more protection under the law than they’ve ever previously had.
Trump’s order directed the Pentagon to revert to the policy before that was in place before June 2016, which prohibited anybody who was openly transgender from serving. The new policy, which was set to take effect next March, would have forced out all servicemembers who had taken advantage of the opportunity to safely come out in their jobs.
Because of the sudden way Trump first announced the policy on Twitter in July, there were immediate consequences for transgender servicemembers, some of whom even had medical procedures delayed or canceled. Monday’s decision does not address the aspects of the ban that refer to blocking them from receiving the medical care they’ve been prescribed, but only because an individual’s access to that care has not yet been implicated.