That’s how many times President Trump has now lost in federal court over his trans military ban following a Wednesday decision from the Ninth Circuit Court of Appeals. For the second time, the San Francisco-based court denied the White House’s plea for a stay against an earlier court injunction preventing the order — first outlined in a series of July 2017 tweets — from taking effect.
U.S. District Judge Marsha Pechman of Washington first issued a preliminary injunction against the policy in December, claiming it was prevented “skilled and qualified service members” from joining the military and was “likely unconstitutional.”
She reaffirmed that ruling in April, despite the Department of Justice’s request to dissolve that decision.
The Justice Department appealed to the Ninth Circuit, urging the court to force Pechman’s hand and overturn the injunction. The court denied that request, calling it “an intrusion into the ordinary processes of administration and judicial review.”
“Appellants ask this court to stay the preliminary injunction, pending the outcome of this appeal, in order to implement a new policy,” wrote the three-member bench in its ruling, which did not weigh in on the merits of Trump’s military ban. “Accordingly, a stay of the preliminary injunction would upend, rather than preserve, the status quo.”
The Trump administration lost seven previous federal cases over the military ban — which was reinstated by a policy memo released in March. The 44-page document claims individuals who “require or have undergone gender transition are disqualified.”
“[T]he Department concludes that accommodating gender transition could impair unit readiness; undermine unit cohesion, as well as good order and discipline, by blurring the clear lines that demarcate male and female standards and policies where they exist; and lead to disproportionate costs,” the policy reads.
Although the language is nearly identical to the president’s tweetstorm promising that trans people would not be permitted to serve in the military “in any capacity,” the DOJ argued the March policy was “substantially different” from previous orders.
Thus, the administration felt the requested stay should be reconsidered. As was the case in the half-dozen prior rulings, the Ninth Circuit did not find that argument persuasive.
The Ninth Circuit ruling — on its face — allows transgender people to continue serving in the military after Trump’s ban was officially lifted on Jan. 1. However, the New York Times reported that almost no trans applicants have successfully joined the military in the six-and-a-half months since, citing draconian requirements intended to delay or discourage their enlistment.
As the ban effectively remains in place due to military red tape, the issue is likely to be decided in April 2019 — when a lawsuit to overturn the ban goes to trial.
Lambda Legal and OutServe-SLDN are representing six active trans service members who say the president’s policy discriminates against them and three transgender people who would like to join the U.S. armed forces. In addition, the Human Rights Campaign (HRC), Gender Justice League, and the American Military Partner Association (AMPA) have signed onto the lawsuit.
The LGBTQ advocates behind that lawsuit say the Ninth Circuit ruling is another sign they will ultimately prevail.
“The Ninth Circuit, much like the… other courts to have considered the proposed policy, has recognized it for what it is — blatant and impermissible discrimination,” claimed Lambda Legal Senior Attorney Peter Renn in a statement. “The court rejected the government’s attempt to ‘upend’ the status quo, as well as the lives of transgender people serving and seeking to serve our country.”
“What more evidence does the administration need before it abandons this discriminatory and harmful scheme to prevent brave and qualified transgender people from serving their country?” he asked.
“The Trump-Pence administration’s continued insistence on targeting our nation’s transgender service members for discrimination is truly deplorable,” added American Military Partners Association President Ashley Broadway-Mack in a press release. “These brave American volunteers have already proven their ability to serve by putting their lives on the line for our nation.”
“What matters in service to our country is whether a person is able to accomplish the mission, not gender identity,” she concluded.
The case could be ultimately decided by the U.S. Supreme Court.