The Trump Administration remains legally barred from putting into effect its strict new limits on transgender individuals continuing to serve in the military or enlisting anew, a federal judge in Washington, D.C., ruled on Tuesday. It will not be free to do so at least until March 29, the judge said. Under normal court procedures, the policy actually could remain on hold for months beyond that late March date.
The Pentagon, believing that all federal court orders against enforcement of the policy had been lifted, a week ago ordered the military services to put the restrictions in place so that they would take effect on April 12. Unless the Administration is able to get a higher court to intervene, that now cannot happen legally.
In a three-page order on Tuesday, U.S. District Judge Colleen Kollar-Kotelly said the nationwide order that she issued almost 17 months ago “remains in place.” She noted that a federal appeals court, the U.S. Court of Appeals for the District of Columbia Circuit, had ruled early this year that her order was not validly issued and must be vacated.
But, the judge also noted, the D.C. Circuit Court has not yet put that decision into formal effect, and has given the challengers to the policy until March 29 to ask for a rehearing of the case either by the three-judge Circuit Court panel that ruled against her order, or by the full bench of all D.C. Circuit judges.
If the challengers do seek rehearing, and they have shown no sign that they will not do so, the Pentagon could not implement the policy until that request is decided in a final way, which could be months from now. That situation results from a later order by the same three-judge panel that had ruled on the Kollar-Kotelly order.
The Pentagon policy adopted to overturn an Obama Administration program that allowed transgender individuals to remain in the service or to join, without restrictions because of their transgender identities. President Trump initiated the new policy on Twitter, and then the Pentagon after a study worked out quite strict limitations on serving or joining.
The key facet of the policy is that, for most transgender individuals, they could only remain in uniform or enlist if they agreed to perform their service in conformity to the biological gender assigned to them at birth. By definition, a transgender person is one who, in growing up, comes to identify as being of the gender opposite to that designated at birth.
At one time, the new approach was blocked nationwide by the separate orders of four federal trial judges, who ruled that the policy likely would be found to be illegal or unconstitutional. The Supreme Court lifted two of those orders in January, and the judge in a case in Maryland did the same with his order earlier this month.
The Trump Administration, contending that the fourth such order (the one issued in Washington by Judge Kollar-Kotelly) had also lapsed under the D.C. Circuit’s ruling, notified the judge last week that it was going to move ahead, and the Pentagon issued a directive last Tuesday to begin that process.
Disagreeing directly with the claim that her order was no longer in operation, the Washington judge cited the rules and orders of the D.C. Circuit, ruling that they mean that her order remains undisturbed until the rehearing potential is played out in full. Nothing about the D.C. case, the judge declared, is final until that process is completed.
The Administration appears to have the option of going to the D.C. Circuit to make a plea to put into effect immediately, without waiting for the rehearing process to unfold, the panel’s ruling that the Kollar-Kotelly order has to be vacated.
In addition, the Administration probably could go to the Supreme Court to ask permission to immediately put the policy into effect, pressing its argument that it should no longer be bound by the Washington judge’s order.