After more than a year of court rulings unanimously blocking Trump’s trans military ban, the White House finally found judges willing to side with them.
On Friday, the D.C. Circuit Court of Appeals lifted a preliminary injunction against the ban put in place by Judge Colleen Kollar-Kotelly. While Kollar-Kotelly argued the policy issued in March 2018 was virtually identical to a 2017 presidential tweetstorm announcing Trump’s intention to remove trans people from the armed forces, a three-judge panel differed in its conclusions.
In a three-page ruling, Judges Thomas Griffith, Stephen Williams, and Robert Wilkins argued that Kollar-Kotelly “made an erroneous finding that the Mattis Plan was not a new policy.”
“The government took substantial steps to cure the procedural deficiencies the court identified in the enjoined 2017 Presidential Memorandum,” the court claimed. These steps allegedly included “the creation of a panel of military and medical experts,” as well as the presentation of “new evidence” on the July 2016 policy allowing trans people to serve openly in the U.S. armed forces for the first time.
Judges with the D.C. circuit court claimed the Mattis Plan limited the scope of Trump’s earlier rhetoric.
The 44-page policy first obtained by INTO required trans enlistees to “demonstrate 36 consecutive months of stability” in the sex they were assigned at birth. It also stated that transgender troops should be “willing and able to adhere to all standards associated with their biological sex.”
The bench—which was unanimous in its decision—felt that policy still left the door open for transgender people to join the military.
“We must recognize that the Mattis Plan plausibly relies upon the ‘considered professional judgment’ of ‘appropriate military officials,’ and appears to permit some transgender individuals to serve in the military consistent with established military mental health, physical health and sex-based standards,” the ruling states.
The justices add that “not all transgender persons seek to transition to their preferred gender.”
LGBTQ advocates argue the D.C. circuit court failed to recognize that the Mattis Plan still effectively forces trans individuals to serve in the closet. In a statement, Jennifer Levi of GLBTQ Advocates & Defenders claimed the ruling is “based on the absurd idea that forcing transgender people to suppress who they are in order to serve is not a ban.”
“It ignores the reality of transgender people’s lives, with devastating consequences, and rests on a complete failure to understand who transgender people are,” GLAD’s transgender rights project director said in a statement. “It is also destabilizing to the military to so dramatically reverse a policy that has been in place for over 2 years that senior military officials acknowledge has operated with no problems.”
Shannon Minter of the National Center for Lesbian Rights further called the decision “a devastating slap in the face to transgender service members who have proved their fitness to serve and their dedication to this country.”
“We will keep fighting this cruel and irrational policy, which serves no purpose other than to weaken the military and punish transgender service members for their patriotism and service,” claimed Minter, who serves as NCLR’s legal director, in a press release.
Advocacy groups plan to petition the D.C. circuit to hear the case en banc, which would mean that all 11 members of the bench would have the chance to weigh in.
While the ruling lifts one of the court injunctions blocking Trump’s trans military ban from taking effect, three additional injunctions remain in place. Thus, transgender people will continue to be able to enlist and serve in the military—for now.
The Justice Department has appealed to the Supreme Court to intervene in three cases regarding the policy: Karnoski v. Trump, Stockman v. Trump, and Doe v. Trump (the latter of which was the case heard by the D.C. bench). SCOTUS is expected to discuss consideration of the case during its upcoming Jan. 11 meeting.
Although the Supreme Court generally waits for lower courts to rule on the case before proceeding, the White House has argued this issue merits an exception.
The D.C. circuit court stressed in its decision that their ruling was not a “final determination on the merits” of whether the federal government can constitutionally bar all members of a protected class from serving in the military.
That will be decided in future cases.
GLAAD’s Sarah Kate Ellis affirmed that any further court decisions must rule in favor of trans troops “who are only seeking to serve this country.”
“Trans people have already proven their fitness to serve, and have been serving their country with honor,” claimed Ellis, who serves as the media watchdog group’s president and CEO, in a statement posted to Twitter.
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