Several developments this week have raised new questions about the fate of President Trump’s ban on transgender people serving in the military. Two different court rulings, an appeal from the Trump administration and one reported by the Associated Press, offered slightly different insights as to whether transgender people could start enlisting in a matter of weeks.
A stay denial and an appeal
As of Monday morning, two federal courts — one in the District of Columbia and one in Maryland — had ruled against Trump’s order prohibiting both the accession (recruitment) and retention of transgender servicemembers, both issuing injunctions to keep the order from taking effect. In doing so, they both imposed the status quo — including the Pentagon’s previous plan to allow transgender accession beginning on January 1, 2018.
Monday morning, U.S. District Judge Colleen Kollar-Kotelly (of the D.C. Circuit) issued a new ruling, rejecting the Trump administration’s request for a stay of her injunction. She stood firm that accession must begin January 1, rejecting the administration’s claims that this was an undue burden, particularly considering accession was originally supposed to start June 1 and the Defense Department had done over a year of prep work and studies.
Monday night, the Trump administration appealed Kollar-Kotelly’s decision to the U.S. Court of Appeals for the D.C. Circuit. Again arguing an “irreparable injury to the government,” the Department of Justice requested a the appellate court issue a stay on her ruling to prevent accession from beginning. The appeal also suggests that even if Trump’s order is overruled, Defense Secretary James Mattis should still have the discretion to further delay the accession policy, as he did this summer.
Because January 1 is mere weeks away, the Department concludes by requesting “that the Court enter an immediate administrative stay pending consideration of this motion. Alternatively, the government asks this Court to issue a decision as soon as possible.”
A third ruling
Meanwhile, a third federal court in Washington state also ruled against the ban on Monday, in a case brought by Lambda Legal and OutServe-SLDN. Senior U.S. District Judge Marsha Pechman, a Clinton appointee, followed the D.C. and Maryland courts’ lead in issuing an injunction reverting back to the status quo before Trump issued his order. Like the other rulings, this would require that transgender people be allowed to join the military starting on January 1.
Pechman’s ruling, however, included some novel distinctions from the other two rulings.The state of Washington itself had joined this suit, and the judge affirmed that the ban harms the state’s “ability to recruit and retain service personnel for the Washington National Guard,” forcing it to expend its resources to impose a discriminatory policy.
Pechman also concluded that the ban would violate the First Amendment by chilling the speech of servicemembers who might hide their gender identity to avoid losing their jobs.
“The policy penalizes transgender service members — but not others — for disclosing their gender identity, and is therefore a content-based restriction,” she wrote, noting that the order “impairs Plaintiff Jane Doe’s rights to express her authentic gender identity.”
Her ruling noted the widest range of injuries servicemembers could experience because of the order, “including denial of career opportunities and transition-related medical care, stigmatic injury, and impairment of self-expression.” The injunction is necessary, she said, because “[b]ack pay and other monetary damages proposed by Defendants will not remedy the stigmatic injury caused by the policy, reverse the disruption of trust between service members, nor cure the medical harms caused by the denial of timely health care.”
Like the other rulings, Pechman observed that Trump announced the policy on Twitter, “abruptly and without any evidence of considered reason or deliberation.” She was simply not convinced by the government’s arguments that the ban in any way helps it achieve its objectives of “military effectiveness, unit cohesion, and preservation of military resources,” particularly since ample prior research and preparation had demonstrated just the opposite.
A confusing fate
Amidst all these developments, the AP issued a report Monday afternoon suggesting that the Pentagon would absolutely start accepting transgender recruits on January 1. Though the article has since been updated to reflect subsequent developments, the original article (and tweet) implied that the Pentagon was, in fact, defying Trump’s order by allowing accession to begin.
BREAKING: Pentagon says it will allow transgender people to enlist in the military beginning Jan. 1, despite Trump's opposition.
— The Associated Press (@AP) December 11, 2017
The original article included little context about the court rulings, including the denial of stay that had been issued Monday morning. As multiple media outlets began to pick up the reporting, however, activists, lawyers, and journalists scrambled to clarify that court orders could still prevent accession from beginning next month. The Pentagon may be preparing to follow an order requiring accession, but it won’t begin accession if it’s not forced to. There is no confusion or dissent within the administration.
Just confirmed with the lead lawyer on this case: This tweet is WRONG. The Pentagon will *respect a court order* requiring transgender enlistment on Jan. 1. That's it. The order will likely be appealed before then. https://t.co/dL0F9fKCYE
— Mark Joseph Stern (@mjs_DC) December 11, 2017
It’s true that the fate of Trump’s ban does not look good. The administration is now trying to defend it in three different federal court jurisdictions. Still, there is no guarantee that any of those injunctions will still be in effect on January 1.