(Later on Friday, the Trump Administration filed a document with the federal judge in Washington, D.C.., explaining why it understood that it was no longer barred from carrying out the policy. That filing can be read here. Transgender rights groups plan to challenge that point.)
Taking the position that it is now legally free to do so, the Trump Administration told a federal court on Friday that the Pentagon will shortly put into effect strict new limits on service in the military by transgender individuals – already serving or attempting to enlist.
The filing noted that a federal judge in Maryland on Thursday had put on hold an existing order barring enforcement of the policy nationwide, and added that, as a result, “there is no longer any impediment to the military’s implementation of the policy.”
An official document on the next move will be issued by the Pentagon “in the near future,” and the policy will go into operation 30 days after that, the filing said.
Civil rights groups that have been challenging the policy in the Supreme Court and lower courts have been arguing that the Pentagon policy is still blocked by an existing nationwide order against enforcement, issued by a federal judge in Washington, D.C.
Although that judge’s order has been overturned by the U.S. Court of Appeals for the D.C. Circuit, that tribunal has not yet put its ruling into formal effect, and has no plan to do so until after the challengers have a chance to try to get the decision reconsidered by the full D.C. Circuit bench. That could take weeks, at least.
Under an order issued by that Circuit Court earlier, the challengers have 21 days from today to seek such a rehearing, and the decision against implementation would not go into effect until 7 days after that request is either denied or decided.
Presumably, the challengers now have the option of asking the D.C. Circuit to clarify the status of the policy’s implementation. They perhaps could also file a new challenge, as soon as the Pentagon issues the planned document to set the stage for implementation.
The groups opposing the transgender restrictions have argued that it amounts to an actual ban on military service by transgender individuals, because it basically requires most of them to serve in the role of the gender assigned to them at birth. By definition, a transgender person is one who, in growing up, has identified as having the gender opposite to the one assigned at birth.
The Administration’s policy against service by most such individuals originated with a tweet by President Trump, seeking to undo the policy of the former Obama Administration allowing transgender individuals already serving to continue on duty, or to newly enlist in the military.
The Pentagon, apparently surprised by the Trump tweet, then undertook a new study and developed the policy that goes far toward excluding service by transgender people. The Pentagon concluded that service by transgender people would interfere with military discipline and readiness.
The Supreme Court issued orders in January to allow the Pentagon to go forward with the new policy, but those orders – issued in cases from California and Washington State — did not eliminate two existing nationwide orders by federal judges in Maryland and Washington, D.C., against enforcement while the challenges go forward in those courts. Neither one of those orders was directly at issue before the Supreme Court in January, so the Trump Administration has been moving in those courts to get permission to start the implementation. The Supreme Court orders , Administration lawyers contended, are binding on all courts that had blocked implementation.
It got permission to go ahead on Thursday from the Maryland judge. Its filings dealing with the Maryland case have not mentioned the continued existence of the D.C. order, apparently assuming that it was no longer valid because of the Circuit Court decision against it. But that decision apparently has not gone into effect because the formal order to do so has not yet been issued.
(UPDATED: The Administration argued in a new filing in the D.C. case that the Circuit Court decision has already gone into effect. That filing is linked at the top of this post. That argument will be contested shortly in a planned filing by transgender rights groups opposed to the policy.)