How aggressively will the Trump administration pursue the transgender troop ban?
That’s the question now that the federal government has 60 days to appeal U.S. District Judge Colleen Kollar-Kotelly’s Monday afternoon decision to grant a preliminary injunction against the ban.
Kollar-Kotelly wrote in her opinion that Trump’s hasty tweets and lack of supporting evidence for his decision were “highly suggestive of a constitutional violation,” and that the transgender plaintiffs were likely to win.
The Trump administration’s planned reversal of a 2016 policy allowing transgender troops to serve openly—previously on track to be implemented in March—has effectively been derailed for the time being. And although the legal battles around the ban will continue, transgender service members have been granted a momentary and partial reprieve from the panic while they await the White House’s response.
“I wouldn’t say it’s normalcy yet,” Bryan Fram, policy chair for the transgender military organization SPART*A, told The Daily Beast. “But some things have improved for people. Packets for gender changes are being pushed forward, people think surgeries are going to be approved again shortly. There is some of that, but it’s localized. ‘Cautious optimism,’ I would say, is the phrase for the day.”
Judge Kollar-Kotelly’s order essentially returns the military for the status quo before Trump’s July tweets, when the estimated 4,000 currently-serving transgender troops were allowed to serve openly but the process of recruiting new transgender troops—or accessions—was still in the works. But an appeal from the Trump administration is a distinct possibility—although the White House stopped short of promising one in a statement.
“President Trump lawfully concluded that the Obama Administration’s eleventh-hour decision to overturn the military’s longstanding policy on service by transgender individuals had not been adequately justified and directed Department of Defense to review the issue,” White House principal deputy press secretary Raj Shah said in a statement. “The Department of Justice is currently evaluating next steps.”
The possibility of those “next steps” means LGBT advocates are still bracing for a fight—and currently-serving transgender troops are still uneasy about the future.
“We really don’t know what to expect,” said Shannon Minter, legal director for the National Center for Lesbian Rights, which secured the injunction on along with the GLBTQ Legal Advocates & Defenders (GLAD). “We’re anxious to see what the government is going to do.” Minter told The Daily Beast that the transgender plaintiffs in the case feel like “a great weight has been lifted” but added that the “stress and tension and confusion” Trump created has not yet been fully “alleviated.”
Indeed, in the midst of this large-scale judicial battle are real people who are deeply uncertain about their job security. Indeed, the U.S. military may be the single largest employer of transgender people in the country, according to a Bloomberg analysis.
“If people are going to be discharged in March, they of course need to make other plans to make a living and obtain health care and housing and many of them have families,” Minter explained. “It puts people in this impossible situation.”
Only the extreme wing of the party—like Alabama Senate candidate Roy Moore, who called for Kollar-Kotelly’s impeachment after she issued the injunction—seems hell-bent on purging the military’s ranks of transgender service members.
There is widespread public support for transgender military service as well. According to a July 2017 Reuters/Ipsos poll—taken shortly after Trump’s tweets—58 percent of Americans support transgender military service and only 27 percent oppose it, while the remainder said they “don’t know.” Supporters of transgender military service included 83 percent of Democrats and 32 percent of Republicans.
“Massive bipartisan support exists for transgender Americans continuing to serve in the military,” Tyler Deaton, senior adviser for the conservative LGBT advocacy organization American Unity Fund, told The Daily Beast in a statement. “The Trump administration is up against overwhelming opposition in Congress, the Courts, the military leadership, and the general public. The President ought to be able to recognize this is a political loser.”
In phone interview, Deaton added that he “do[es] see damage if the administration continues to pursue this,” given how much opposition there is for the ban among the president’s own political party.
“My observation, from all of the Republicans who I talk to, is basically people want to go back to exactly where we were in the process of continuing to study this,” he said. “[They want to] be methodical, be thorough, and let the military leadership be in the driver’s seat here—not bureaucrats, not social agenda zealots with some sort of an ax to grind who don’t know the first thing about military policy.”
Indeed, it was reportedly the more zealous wing of the Trump administration that pushed for the seemingly out-of-the-blue ban in the first place.
As The Daily Beast reported, Vice President Mike Pence and former chief strategist Steve Bannon had been “pushing hard” for the policy ban, which the White House anticipated would go over well with the Religious Right.
Politico reported in their behind-the-scenes breakdown of Trump’s decision that the president abruptly issued his tweets to satisfy House Republicans and thereby secure funding for his favorite pet project: the U.S.-Mexico border wall.
The House did approve a spending bill including funding for the wall the day after Trump’s tweets—but, as Newsweek noted, it would only cover 74 miles of the 2,000-mile border. And the inclusion of border wall funding, as The New York Times noted, made the bill “almost certain to fail in the Senate” anyway. Trump has since failed to secure congressional funding for the wall.
Effectively, that means Trump may have already failed to get what he reportedly wanted out of the transgender troop ban in the first place—and continuing to push for it would mean butting heads with his own party and the public at large, all at a moment when his approval ratings are the lowest they have ever been: 38 percent. The “snap decision,” as Politco described it, has backfired.
In fact, the suddenness with which Trump tweeted about the ban has become the biggest impediment to seeing it through; in her 76-page opinion, Judge Kollar-Kotelly cited the lack of “formality or deliberative process that generally accompany the development and announcement of major policy changes that will gravely affect the lives of many Americans.”
If Trump’s tweets are any indication, he cares much more about his travel ban than the transgender troop ban. Trump has only tweeted the word “transgender” twice—both times on the July morning he hastily announced his ban.
But knowing how much influence the Religious Right still wields within the White House, LGBT advocates are still anticipating a protracted fight despite Monday’s taste of victory.
“We’re gonna see this through to the end,” Minter promised, noting that the soonest the case could end up before the U.S. Supreme Court if the government appeals would be Spring 2018.
And until the appeal window passes or the legal challenges against the ban get decided more definitively, transgender service members will save the celebration until after the fight is over.
“There’s a lot of good feelings about the strength of the argument that the judge put forth in dismissing the Department of Justice’s decision,” Fram told The Daily Beast. “However, we do realize that it is the first skirmish—maybe not even battle—in the war to resolve this issue.”