On Friday night, the Trump administration announced that it will not ask the Supreme Court to stay a lower court order requiring the military to accept transgender recruits starting on Monday. This move provides the first indication that the government may ultimately relent in the face of four successful court challenges to President Donald Trump’s proposed ban on transgender service. It raises the possibility that Trump’s own Department of Defense will endorse qualified trans individuals’ right to serve their country without discrimination. And it means that, for the first time ever, openly transgender Americans may enlist in the armed forces beginning on New Year’s Day.
Transgender troops have been permitted to serve openly since June 2016, and the Pentagon had planned to let openly trans people enlist starting in 2018. But in July, Trump declared via Twitter that he would impose an absolute ban on trans service. His decision was remarkable in light of the fact that the military had already commissioned a study that found that trans service had no adverse impact on the armed forces. Moreover, every branch of the military, as well as the Pentagon, had studied the issue and concluded that trans Americans should be able to serve openly. Trump’s decision appeared to be the result of pure partisan appeasement.
Civil rights groups promptly filed lawsuits in four separate federal courts. Each court concluded that Trump’s ban was not only unconstitutional but also arbitrary and irrational. The Justice Department alleged that trans service would threaten “unit cohesion” and drive up medical costs. But as U.S. District Judge Colleen Kollar-Kotelly explained, the government’s reasons for banning trans troops are “not merely unsupported, but [are] actually contradicted by the studies, conclusions and judgments of the military itself.” She noted that “the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy,” but rather by unlawful animus.
Kollar-Kotelly ordered the government to maintain the status quo. Her decision barred the Pentagon from purging trans troops who already serve and required the armed forces to let open trans service starting on Monday. The Justice Department appealed her decision to the U.S. Court of Appeals for the District of Columbia Circuit, asking it to delay the Jan. 1 target date. (In doing so, the DOJ misrepresented its ability to comply with the deadline, concealing a memo preparing the military for transgender enlistment.) The D.C. Circuit rejected the appeal on Dec. 22 in a brief order that included a stirring defense of trans troops:
[A]ll Plaintiffs seek during this litigation is to serve their Nation with honor and dignity, volunteering to face extreme hardships, to endure lengthy deployments and separation from family and friends, and to willingly make the ultimate sacrifice of their lives if necessary to protect the Nation, the people of the United States, and the Constitution against all who would attack them.
Attorneys challenging Trump’s ban assumed that the DOJ would file another appeal with the Supreme Court, asking the justices to delay the Jan. 1 deadline. But as that date drew closer, the DOJ remained silent. Then, on Friday, it issued a statement advising that it will forego the Supreme Court for now and instead litigate the ban in district court:
The Department of Defense has announced that it will be releasing an independent study of these issues in the coming weeks. So rather than litigate this interim appeal before that occurs, the administration has decided to wait for DOD’s study and will continue to defend the President’s and Secretary of Defense’s lawful authority in district court in the meantime.
The exact language here is important. Trump’s memorandum implementing the trans ban directed the DOD to further “study the issue” of trans service. Because that “issue” has already been studied extensively, this new analysis seemed to be pretextual, a fig leaf that would be used to justify the ban in court. But the DOJ’s Friday statement suggests that this study might confirm what every past study found—that there is no need for a ban. So rather than asking SCOTUS to block the imminent enlistment of trans Americans, the DOJ will linger at district court until the matter becomes moot.
There’s another, more practical reason to suspect that the trans ban may be on life support. Starting on Monday, for the first time in American history, openly trans individuals may enlist in the U.S. armed forces. The Pentagon has spent years preparing for this moment; it is extremely likely that trans enlistment will go off without a hitch. This successful start to a new era will further undermine Trump’s claims that trans service is detrimental to the military. It will bring new transgender men and women into our armed forces—troops whom Trump ostensibly plans to purge. And it will cement the Pentagon’s trans-friendly policies, creating a new status quo in the military that prohibits discrimination on the basis of gender identity.
I asked Shannon Minter, legal director of National Center for Lesbian Rights—which is challenging the ban—what he made of the DOJ’s announcement. He called the decision “a major victory” and “great news for transgender troops, transgender military academy and ROTC students, and transgender people who have been waiting to enlist.” Minter added that it would be “unthinkable” for the military to “permit openly transgender people to enlist and then turn around and condemn them as unfit to serve.”
“There was never any legitimate reason for President Trump to upset the military’s existing policy on transgender troops,” he told me. “We are hopeful the Department of Defense will once again confirm that excluding transgender people from military service would serve only to deprive the armed forces of dedicated service members and undermine our national security.”
There is good reason for hope. Thanks to lawyers like Minter, their transgender plaintiffs, and the federal judiciary, Trump’s ban is on very thin ice. And Monday will be a landmark day for transgender Americans, who have finally secured the right to serve without concealing their identity.
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