“Nothing has changed and there is no word how long implementation would theoretically take,” a Department of Defense spokesperson told The Daily Beast.
That’s in part because an injunction remains in the Maryland case of Stone v. Trump, which was brought by the American Civil Liberties Union on behalf of transgender plaintiffs who are either currently serving in the armed forces or want to enlist.
In light of the Supreme Court’s 5-4 ruling—which will allow lower courts to continue weighing the various transgender troop ban cases while the policy goes into effect—the Department of Justice filed a motion last Thursday to stay the injunction in Stone v. Trump, asking for an “expedited ruling.”
“We also notified the [Maryland] court the day the Supreme Court’s orders came down,” a Department of Justice spokesperson told The Daily Beast.
But there may still be room to fight over that injunction, ACLU staff attorney Joshua Block said. Block informed The Daily Beast earlier in the week that the ACLU was planning to file a response to the Department of Justice‘s motion “in a day or two.” On Thursday, as BuzzFeed’s Chris Geidner reported, it was filed.
The ACLU's response, Block told The Daily Beast, acknowledges that the Supreme Court’s order means that a stay on the lingering injunction would be “appropriate”—but also requests that the injunction can be left in place “for some of our named plaintiffs who are literally in the process of enlisting, have application papers with the military, and have been working diligently with recruiters for a long time.”
As the official response itself notes, “these individual Plaintiffs are all on the cusp of being able to enlist in the military or commission as officers, but they will lose that opportunity."
In other words, the ACLU wants plaintiffs in Stone v. Trump who have been knocking on the military’s door to be let in before it shuts behind them—especially in light of how much time they have spent on the doorstep.
“It is particularly egregious to—after all of that—yank the rug out from under them right at the end of the process,” said Block.
Still, though, Block acknowledged that it’s only a matter of time before the Trump administration’s policy will be permitted to go into effect for everyone else.
One other wrinkle in that timeline is the D.C. Circuit Court’s ruling earlier this month, which vacated one of the injunctions on the transgender troop ban.
Block told The Daily Beast that this injunction “is also technically still in place” until a week after the 45-day window for LGBT groups to seek a rehearing in the case. That window will close in February.
That means sometime next month the Trump administration will likely get the green light to go ahead and implement the most recent version of its transgender troop ban.
“Within a few weeks, whatever injunctions are in place may no longer be in place,” said Block. “But I also think it’s important that people realize that it’s not as though once the injunctions are lifted, people are going to be imminently kicked out of the military en masse.”
Indeed, once the last legal obstacles are removed, it’s not clear how soon members of the armed forces might start getting discharged for coming out as transgender. (As noted above, the Department of Defense does not yet know “how long implementation would theoretically take.”) Rather, the Trump administration policy would essentially divide transgender people who wish to serve—or continue serving—into three groups.
The troop ban would block potential transgender service members from enlisting but it would also allow those soldiers who have already transitioned to remain because they were grandfathered in under the older, more inclusive policy.
Caught in the middle will be current transgender service members who have not yet come out and received a gender dysphoria diagnosis. This third group, Block said, “will have to continue serving in silence and would face discharge if they came out.” In short, they will have to choose between seeking medical care and keeping their jobs.
The ACLU is concerned not just about transgender people who might be discharged or turned away, but about the group who will be allowed to stay under the grandfather provision of the transgender troop ban.
“We have a lot of concerns about how, as a practical matter, they will really be able to serve on equal terms—and will they be forced out in other ways?” Block said.
Indeed, one strange consequence of the policy will be that closeted transgender service members who face the threat of discharge will potentially serve alongside those openly transgender service members.
It would be as though, rather than repealing “Don’t Ask, Don’t Tell” outright, the military had instead allowed those who had already come out as gay, bisexual, or lesbian to remain out—while discharging anyone else who comes out.
“It’s an absolutely untenable situation and it’s a good indication of the irrationality of this policy to begin with,” said Block. “You have people who are living proof that you can serve openly without posing any threat at all to military readiness, so why does the government want to simultaneously force thousands of other people to stay closeted?”
While the legal and procedural consequences of the Supreme Court’s ruling unfold, transgender service members will continue living in the same state of limbo they have been ever since Trump first announced the policy on Twitter in July 2017.
Even if the courts end up conclusively supporting transgender military service—concurring with the 70 percent of Americans who do—the temporary implementation of the policy will still add to the stress faced by current troops, Block said.
“I think it’s been an incredible amount of pressure and stigma to put on people for the past two years,” he told The Daily Beast. “And this is just going to make it worse.”