A federal court has finally ruled in favor of Trump’s transgender troop ban—but so many have already ruled against it that the Pentagon can’t implement it just yet.
As the Associated Press reported Friday, a three-judge panel of the D.C. Circuit appeals court ruled in the case of Doe v. Trump that Judge Colleen Kollar-Kotelly overstepped in placing a preliminary injunction on the revised transgender troop ban that then-Defense Secretary James Mattis submitted in 2018. But the panel stopped short of saying that the transgender troop ban was constitutional.
“Although today’s decision is not a final determination on the merits, we must recognize that the Mattis Plan plausibly relies upon the ‘considered professional judgment’ of ‘appropriate military officials,’” the panel wrote, quoting from the Supreme Court’s 1986 ruling that the Air Force could require a Jewish soldier to not wear a yarmulke.
In other words, the panel effectively agreed with the Trump administration’s December 2018 argument that the it was “extraordinary” for courts to block the implementation of the policy. The panel believes that the Pentagon should be allowed to execute the Mattis Plan if it so chooses, regardless of the open questions about its constitutionality.
Because there are currently three additional injunctions on the transgender troop ban, as the AP noted, transgender people will continue serving openly for the time being. But this new ruling in favor of the Trump administration is not much comfort to the currently-serving transgender troops awaiting a final outcome, LGBT leaders say.
“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,” said National Center for Lesbian Rights legal director Shannon Minter in a statement. “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.”
Still pending is the Trump administration’s November 2018 petition to the Supreme Court, asking the Court to consider the transgender troop ban before the case has finished playing out at lower levels. SCOTUS could decide to hear the case by the middle of this month—and a ruling in favor of the Trump administration at that level would supersede all of the injunctions that have been placed to date.
Short of that, the case will continue to play out in multiple federal courts at once.
At stake in these ongoing judicial battles is the question of whether or not the revisions that then-Secretary Mattis made to the original transgender troop ban—first tweeted out by President Trump in July 2017–render the policy substantially different from its original form.
Rather than directly banning all troops who are transgender as Trump originally seemed to envision on Twitter and in a subsequent memo, the Mattis Plan targets transition-related medical care for gender dysphoria as a disqualifying condition instead. But that’s a distinction that LGBT legal advocates believe is essentially meaningless: Rather than kicking out transgender people because they are transgender, they say, it would kick them out for transitioning.
The Trump administration has further argued that the transgender troop ban isn’t really a ban per se because transgender people could continue to serve in their birth-assigned sex if they so choose. In their ruling Friday, the three-judge panel seemed sympathetic to that argument, saying that because “not all transgender persons seek to transition to their preferred gender” it would be wrong to characterize it as “a blanket ban on transgender service.”
LGBT advocates have countered that it is particularly cruel to demand that transgender service members refrain from transitioning in order to keep their jobs—and Jennifer Levi, transgender rights project director for GLBTQ Legal Advocates & Defenders, echoed that sentiment in response to Friday’s ruling.
“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,” Levi said in a statement. “It ignores the reality of transgender people’s lives, with devastating consequences, and rests on a complete failure to understand who transgender people are.”
At present, transgender people are still able to serve in the military and can seek medical care without being discharged. All that could change this year, depending on how these legal battles play out.