The Trump Administration has now filed its request to the appeals court, the D.C. Circuit, to “take all appropriate steps” to enable the Pentagon to go ahead with enforcing its new transgender policy. The request sought one of three alternatives: to clarify that a federal judge’s order barring the policy is no longer in effect, to put that judge’s order on hold so that implementation can begin as planned, or to put into effect immediately a January ruling by the D.C. Circuit against the judge’s order. The motion asked for a ruling by the Circuit Court within a week, by March 27. The filing can be read here.
Moving in two separate federal courts, the Trump Administration is pursuing new pleas for legal permission to implement its broad new restrictions on military service by transgender individuals. With the Pentagon already moving ahead, Administration lawyers filed their new request Wednesday in a federal trial court and planned shortly to do the same in a federal appeals court.
The Administration has been pressing its case for enforcing the new limits so energetically in a variety of courts that the filings on Wednesday could be only preliminary to taking its plea on to the Supreme Court if rebuffed by the lower courts.
Under a Pentagon directive issued last week, the military services are now taking steps to put the policy fully into effect in about three weeks – on April 12. Because of that, Administration lawyers asked for swift rulings by the courts on the new implementation pleas.
As of Wednesday morning, the Pentagon was still blocked from enforcing the policy because a trial judge in Washington, D.C., U.S. District Judge Colleen Kollar-Kotelly, ruled on Tuesday that a 2017 order she had issued against going ahead remains in effect and is binding. (Her order on that point is described and linked in the post just below.)
The Administration disagrees with the judge’s interpretation, and argued again on Wednesday that the Supreme Court’s action in January in two other cases, clearing the way for the policy, is also controlling for the dispute in her court, and argued as it has before that January action by the U.S. Court of Appeals for the D.C. Circuit has already wiped out the judge’s 2017 order. The judge said Tuesday that the Administration is wrong on both points, and that her order will stand at least until late this month, and perhaps for considerably longer.
The contrasting views are based upon how to interpret an order by the D.C. Circuit giving challengers to the Pentagon policy until March 29 to ask for a new hearing on the legality of the policy.