A federal appeals court has rejected yet another of the Trump administration’s attempts to lift a block on the transgender military ban while lawsuits against the ban make their way through the courts – setting the matter up for potential Supreme Court review.
The U.S. Court of Appeals for the Ninth Circuit Wednesday denied the request to lift an injunction issued by Judge Marsha Pechman, who is hearing Karnoski v. Trump, one of four suits challenging the ban. The suit is being heard in U.S. District Court for the Western District of Washington, based in Seattle. District judges in all four suits have issued injunctions that keep the ban from going into effect while the cases are heard. Kanrnoski v. Trump is set to go to trial next April.
Pechman had actually issued injunctions against the ban twice – in December and again in April. The second injunction came about when Justice Department lawyers contended that a March memo from the White House providing the administration’s justification for the ban constituted a new policy, not the one announced by Donald Trump via Twitter last July, and which Pechman had blocked with her December injunction. She ruled that no, it was the same old policy.
Today’s ruling by the Ninth Circuit means the administration could appeal to the Supreme Court before Justice Anthony Kennedy retires at the end of this month, notes the Washington Blade. “The Justice Department could file a request to stay the injunction with Kennedy, who’s responsible for issuing stays on the decisions from the Ninth Circuit,” the paper reports. “Kennedy could decide the matter himself, but would likely refer the matter to the entire court for a determination.”
If the Justice Department seeks Supreme Court review, it will likely do so before the week is out, legal experts told the Blade, meaning Kennedy could consider the injunction, if not the merits of the case, before his retirement. An attorney with Lambda Legal, which filed Karnoski v. Trump along with OutServe-SLDN, said Kennedy is unlikely to make an anti-LGBT ruling.
“If the government does seek a stay, and the request is referred to the full Supreme Court, it is unlikely that a majority of the Supreme Court would allow the government to immediately enforce its discriminatory plan,” Lambda Legal senior attorney Peter Renn told the Blade. “If there is a vote on a stay by the end of this month, it is difficult to imagine that Justice Kennedy will want to cap off his tenure on the court by allowing the military to toss aside transgender people, and their sacrifices for our country, as if they were disposable.”
In any case, Renn and other LGBT advocates were encouraged by today’s decision. “The Ninth Circuit, much like the six other courts to have considered the proposed policy, has recognized it for what it is – blatant and impermissible discrimination,” Renn said in a Lambda Legal press release. “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. It has been one year since President Trump announced via tweet his plan to bar transgender people from the military, and in that year four district courts and, now, three courts of appeal have blocked its implementation. 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?”
In Karnoski v. Trump, Lambda and OutServe-SLDN represent current and aspiring trans service members as well as three organizations, the Human Rights Campaign, American Military Partner Association, and Gender Justice League. "Once again, another court has held off Donald Trump and Mike Pence's desperate attempts to impose their extreme anti-LGBTQ agenda on the U.S. military," said a statement issued by HRC national press secretary Sarah McBride. "After a string of victories for transgender troops and enlistees at the district court level, this appeals court ruling reinforces that there is simply no need or legitimate reason to bar capable and willing transgender Americans from serving their country. We are grateful to Lambda Legal and OutServe-SLDN for their representation in this critical case, and we hope that the constitutional rights of transgender Americans will continue to be upheld by the courts as this case proceeds."
“The Trump-Pence administration’s continued insistence on targeting our nation’s transgender service members for discrimination is truly deplorable,” added Ashley Broadway-Mack, president of the American Military Partner Association. “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.”