Without waiting for the courts to decide if it can do so legally, the Trump Administration has issued orders to put into effect next month its strict new limitations on service in the military by transgender individuals. The policy will affect those already in uniform as well as those seeking to enlist.
On Tuesday night, the Pentagon issued a directive spelling out the details of the new policy and specified that it would go into effect on April 12. It did so even as a federal judge in Washington, D.C., who previously had barred enforcement of the policy, is weighing a new claim that the Pentagon is not yet legally entitled to move ahead with the changes.
Administration lawyers, who have claimed that there is no remaining legal barrier to the policy, are due to answer on Thursday the Washington judge’s new order for government lawyers to justify their view that the Pentagon no longer needs to obey that judge’s October 2017 order against enforcement.
The challengers to the policy have argued in recent filings in the U.S. District Court of Judge Colleen Kollar-Kotelly that the Pentagon cannot impose the changes until after the challengers have had a chance to take their claim to a federal appeals court, the U.S. Court of Appeals for the D.C. Circuit. It may take weeks for the Circuit Court to decide on the legality of the new policy, even if it agrees soon to hear the new challenge by those opposing the policy shift. The challengers have until March 29 to ask the Circuit Court to decide that question.
The Pentagon’s new policy does allow some transgender members already in the military to continue serving, but imposes a number of significant conditions on that option. But for existing service members who seek promotion to officer ranks, and to all who seek to enlist anew in the services, they would be eligible to serve only if they did so with their conduct conforming to their “biological sex” – that is, basically, the gender assigned to them at birth based upon physical characteristics.
The new policy is aimed at overturning an Obama-era policy of allowing transgender individuals to serve or join based on the gender with which they now identify. By definition, a transgender person is one who, though assigned one gender at birth, grows up to identify with the opposite sex and conducts their lives according to that identity.
The Trump move to abandon and then broadly revise the prior policy was challenged in lawsuits in federal courts stretching from the East Coast to the West Coast. Four federal trial court judges – including Judge Kollar-Kotelly – ruled that the change would probably violate the rights of transgender individuals, and each issued a nationwide order temporarily forbidding enforcement of the new limitations while the court cases continued to unfold.
In January, the Supreme Court temporarily set aside two of those orders, but two others remained in effect at that time. One was the Kollar-Kotelly order in Washington, the other had been issued by a Maryland judge. Last week, the Maryland judge, concluding that the Supreme Court’s January action was now controlling, set aside that existing bar to enforcement.
In the meantime, a three-judge panel of the D.C. Circuit in Washington temporarily ruled that the Kollar-Kotelly order was invalid, and would have to be vacated. However, the Circuit Court said it would not put its order into formal effect until after the challengers had an opportunity to have the case reconsidered by the full membership of the Circuit Court.
Despite that situation, the Administration notified Judge Kollar-Kotelly last week that it interpreted the D.C. Circuit ruling as, in effect, a lifting of her order against enforcement. The challengers responded this week, arguing to the judge that her 2017 order against moving ahead with the policy remained intact, pending the prospect of further action in the D.C. Circuit.
On Tuesday, the judge issued an order calling for a reply from the Pentagon’s lawyers, to be submitted by this Thursday. But, before the end of the day Tuesday, the Pentagon formally issued a directive to begin enforcing the policy in 30 days.
On Wednesday, the challengers returned to the judge’s court, sending in a copy of the Pentagon directive and arguing that “the issuance of an official order directing a change in the government’s policy regarding transgender service members violates” the judge’s 2017 order, which they contended was still in effect. The filing added: “At stake here are the constitutional rights and livelihoods of thousands of prospective and current transgender servicemembers, as well as the authority of this court.”
That leaves the Pentagon’s authority to do so in an uncertain state, at least until after its new filing due on Thursday.