The Pentagon on Tuesday afternoon gained clear and definite legal permission to impose significant new limitations on military service for transgender individuals, under a new policy that is set to formally begin in 17 days — on April 12. With the legality of the new restrictions still not decisively settled in any federal court, the last of four lower court orders — each imposing a temporary, nationwide ban on enforcement — was lifted by the U.S. Court of Appeals for the District of Columbia Circuit.
A three-judge Circuit panel acted within hours after all legal filings had been submitted on a plea by the Trump Administration for permission to continue already-begun preparations for carrying out the policy. The panel acted even though the challengers to the new policy still have an opportunity to ask the full bench of all active D.C. Circuit judges to rule that the policy is unconstitutional and violates federal laws.
In January, the Supreme Court lifted two of the four trial court temporary orders against enforcement, and a federal trial judge in Maryland did the same on a third order on March 7. Left in dispute at that point was the fourth order, in effect since October 2017, that had been issued by a federal trial judge in Washington, D.C. That judge, U.S. District Judge Colleen Kollar-Kotelly had recently ruled that her order was still in effect, and that the Pentagon thus was not yet free to implement the new restrictions.
The new Pentagon approach was first raised in a Twitter message by President Trump, and that led to a Pentagon study to determine just how far the restrictions should go. The President wanted the policy to replace one that the former Obama Administration had adopted, which would have given permission for the first time for transgender individuals already in uniform or desiring to enlist anew to serve openly in their gender identities as transgender person. (Transgender status means that a person, in growing up, comes to identity themselves not with the gender assigned to them at birth, but with the opposite gender.)
A main feature of the new Trump Administration approach requires most transgender individuals already serving or seeking to join to serve as if their identify was that assigned to them at birth, adding significant new limitations on the nature of the situations they would encounter while in uniform, including access to intimate or private facilities or roles based on traditional genders.
\The Supreme Court has not yet ruled on whether either the Constitution or federal civil rights laws provide any protection for legal rights for transgender people, in the military, in education or in any other setting. There are cases seeking to test that issue now on the Court’s docket, awaiting word on whether the Justices will take on the issue for decision. Meanwhile, lower courts have been pondering that question; it was in four of those lower courts that trial judges had concluded, temporarily, that the policy would ultimately be found to be invalid, after later, full-scale court review. Those temporary findings led to the four nationwide orders against enforcement, all of which have now fallen.
Technically, the last one lost its effect on Tuesday afternoon as the D.C. Circuit granted the Administration’s request to put into effect a decision that the same Circuit panel had announced on January 4, when it decided that the trial judge’s order against implementation had been issued illegally because it was based on a misunderstanding by the judge of the actual scope of the new policy. Later, on January 31, that panel appeared to have left uncertain the actual legal status of the January 4 ruling. Any lingering doubt ended with the Tuesday order, which the Circuit Court’s clerk followed up by putting the order into immediate formal effect so that enforcement is now allowed.
