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A federal appeals court has sided with President Trump on his attempt to ban transgender people from the military, marking the first court victory for the administration on the anti-trans policy as litigation against it moves through the courts.
In a five-page decision, a three-judge panel on the D.C. Circuit Court of Appeals overturns a preliminary injunction issued by U.S. District Judge Colleen Kollar-Kotelly barring the Trump administration from banning transgender service members.
Although the D.C. Circuit has lifted one preliminary injunction against the transgender military ban, three more orders against the policy remain in effect. Transgender people will be able to continue to serve in the U.S. armed forces as litigation moves forward in the courts.
The unsigned ruling was a per curiam decision, which means it was unanimous. The three-judge panel consisted of U.S. Circuit Judge Stephen Williams, a Reagan appointee; U.S. Circuit Judge Thomas Griffith, a George W. Bush appointee; and U.S. Circuit Judge Robert Wilkins, an Obama appointee.
The opinion indicates Wilkins and Griffiths plan to issue a longer opinion at some time in the future and Williams plans a concurring opinion.
The order might also not be the D.C. Circuit’s final word on the transgender military ban. The opinion itself notes “today’s decision is not a final determination on the merits,” but a decision on a whether a preliminary injunction should remain in place as litigation continues.
Cited as the D.C. Circuit’s reason for lifting the order is the plan issued by former Defense Secretary James Mattis seeking to implement Trump’s 2017 tweet and subsequent order against allowing transgender people to serve “in any capacity” in the military.
The court concludes Kollar-Kotelly “made an erroneous finding that the Mattis Plan was not a new policy” because she ignored certain nuances about the plan.
“The government took substantial steps to cure the procedural deficiencies the court identified in the enjoined 2017 Presidential Memorandum,” the order says. “These included the creation of a panel of military and medical experts, the consideration of new evidence gleaned from the implementation of the policy on the service of transgender individuals instituted by then-Secretary of Defense Ash Carter (‘the Carter Policy’), and a reassessment of the priorities of the group that produced the Carter Policy.”
The Mattis plan allows transgender people to continue to serve in the military if they “have been stable for 36 consecutive months in their biological sex” and do not seek transition-related case, such as gender reassignment surgery, are not diagnosed with gender dysphoria or came out as transgender during the period of open service under former Defense Secretary Ashton Carter during the Obama administration.
Although transgender advocates have made the case gender dysphoria is a defining characteristic of being transgender and thus the policy amounts to a full-fledged ban, the court disputes that notion.
“We can find nothing in the record to support this definition of being transgender, as all of the reports supporting both the Carter Policy and the Mattis Plan defined transgender persons as ‘identifying’ with a gender other than their biological sex,” the order says. “Indeed, those reports repeatedly state that not all transgender persons seek to transition to their preferred gender or have gender dysphoria.”
The order also cites legal precedent requiring courts to give deferences to the military on whether individuals are eligible for combat.
“We must recognize that the Mattis Plan plausibly relies upon the ‘considered professional judgment’ of ‘appropriate military officials,’ and appears to permit some transgender individuals to serve in the military consistent with established military mental health, physical health and sex-based standards,” the order says.
The ruling was handed down in the case of Doe v. Trump, the case against the transgender military ban filed by the National Center for Lesbian Rights and GLBTQ Advocates & Defenders.
Shannon Minter, legal director for the National Center for Lesbian Rights, said in a statement the 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.”
“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 said.
Minter told the Blade the legal team is considering asking the D.C. Circuit for an en banc rehearing, adding, “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.”
Jennifer Levi, director of the Transgender Rights Project for GLBTQ Advocates & Defenders, said in a statement the opinion is “based on the absurd idea that forcing transgender people to suppress who they are in order to serve is not a ban.”
“It ignores the reality of transgender people’s lives, with devastating consequences and rests on a complete failure to understand who transgender people are,” Levi said. “It is also destabilizing to the military to so dramatically reverse a policy that has been in place for over 2 years that senior military officials acknowledge has operated with no problems.”
The U.S. Justice Department didn’t immediately respond to the Blade’s request to comment on the opinion.
The D.C. Circuit issues the order less than a month after hearing oral arguments on whether to dissolve Kollar-Kotelly injunction against the transgender military ban. At the time, the three-judge panel didn’t give a clear signal on which way they’d rule on the issue.
The order is handed down as the Justice Department has two requests pending before the U.S. Supreme Court seeking intervention in three transgender military cases, including Doe v. Trump. The other two cases are Karnoski v. Trump and Stockman v. Trump, which are pending before the U.S. Ninth Circuit Court of Appeals.
One request calls on the Supreme Court to take the rare step of granting review of the cases on an interlocutory basis to allow enough time for justices to issue final decision on the policy before the end of the year. The other seeks a stay on the preliminary injunctions against the policy, which would essentially allow the Trump administration to bar transgender service members as litigation moves forward.
Minter said the D.C. Circuit decision moots the Justice Department’s request for cert before judgment and a stay in the Doe v. Trump case, but doesn’t directly affect the Trump administration’s requests before the Supreme Court in other cases.
With respect to those cases, Minter said the D.C. Circuit decision “may weigh against the court granting cert” because the Trump administration urged the Supreme Court to consolidate all of them.
“It does not directly affect the government’s motion for stays of the injunctions in Karnoski and Stockman, though it certainly raises the stakes of that request, since the injunction in Doe has now been dissolved by the D.C. Circuit,” Minter added.
This article originally appeared in the Washington Blade and is made available in partnership with the National Gay Media Association.