A federal appeals court has overturned an injunction blocking Donald Trump’s transgender military ban, but the ban still can’t go into effect due to other injunctions against it.
The ruling from the U.S. Court of Appeals for the District of Columbia Circuit is, however, the first win for the Trump administration on the ban, the Bloomberg news service notes.
A three-judge panel of the court ruled today that the ban, as modified ever so slightly by then-Defense Secretary James Mattis last year, is different from the one announced by Trump via Twitter in July 2017. In the court’s view, the modified ban “accommodates some transgender service members and therefore isn’t as restrictive as the blanket ban” that Trump originally tweeted, according to Bloomberg. About the only accommodation, though, is that it allows trans troops to serve in the gender they were assigned at birth – therefore, not as trans people.
Four U.S. District Courts have issued injunctions against the ban, blocking it from going into effect while cases against it are heard. At least one district judge, Marsha Pechman in Washington State, has ruled that the “new” ban crafted by Mattis is essentially the same as the old one.
But according to the appellate court panel, the Mattis-created policy “plausibly relies upon the ‘considered professional judgment’ of ‘appropriate military officials,’ and appears to permit some transgender individuals to serve in the military.” The judges’ ruling reverses the decision by District Judge Colleen Kollar-Kotelly to block the ban, although the injunctions by the other courts remain in effect.
The appeals court’s ruling came in the case of Doe v. Trump, the first lawsuit filed against the ban, with the National Center for Lesbian Rights and GLBTQ Legal Advocates and Defenders representing current and aspiring trans service members. Both groups denounced the ruling but emphasized that the ban is still blocked and that the effort against it goes on.
“Today’s ruling is a devastating slap in the face to transgender service members who have proved their fitness to serve and their dedication to this country,” NCLR legal director Shannon Minter said in a press release. “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.” Minter also told the Washington Blade the groups may ask the full D.C. appeals court to reconsider today’s decision by the panel. “This is not a final decision on the merits, and we are very confident of our ability to make our case in the district court as the case proceeds,” he said.
“Today’s decision is based on the absurd idea that forcing transgender people to suppress who they are in order to serve is not a ban,” GLAD transgender rights project director Jennifer Levi added in the press release. “It ignores the reality of transgender people’s lives, with devastating consequences, and rests on a complete failure to understand who transgender people are. It is also destabilizing to the military to so dramatically reverse a policy that has been in place for over two years that senior military officials acknowledge has operated with no problems.”
The policy she referred to was that implemented by President Barack Obama and Defense Secretary Ash Carter in 2016, allowing trans troops to serve openly without fear of discharge due solely to their identity.
Now the Trump administration is asking the Supreme Court to review the cases against the ban, with the goal of letting it go into effect even though the suits haven’t made their way through the lower courts. The high court hasn’t said yet if it will take up the matter.