As the White House unveiled its new order Friday night, Justice Department lawyers filed papers asking four federal courts to lift preliminary injunctions those courts issued late last year over the previous iteration of the ban.
The legal maneuvers are similar to the flurry of federal-court activity as the White House imposed and then altered entry ban orders as it navigated court decisions.
The injunctions that froze the Trump administration’s initial ban on transgender troops came in lawsuits brought by some troops, would-be recruits, human rights groups and several states against a change the would undo an Obama-era policy from 2016 allowing transgender individuals to enlist and serve openly.
In those lawsuits, judges in Washington, Baltimore, Seattle and Riverside, Calif., had said the Trump ban of last year probably was discriminatory and required the military to allow transgender recruits to enlist and continue to serve openly effective Jan. 1.
The four courts had said the parties bringing the lawsuits were likely to win their arguments that the initial ban was unlawful.
In Washington on Wednesday, U.S. District Court Judge Colleen Kollar-Kotelly declined to lift two orders she issued late last year temporarily halting the ban. Instead, she gave GLBTQ Legal Advocates and Defenders (GLAD) and the National Center for Lesbian Rights (NCLR) — who have sued on behalf of six active-duty transgender service members — until April 6 to amend their lawsuit in light of the new executive order.
The judge then gave the Justice Department until April 20 to say how it intends to proceed.
Justice Department senior trial counsel Ryan B. Parker and trial attorney Andrew E. Carmichael had told the court the block to the ban in essence was moot in light of the changes Friday. They asked Kollar-Kotelly to dissolve her injunction, saying the basis for it “no longer exist” and that a streamlined ban, like that issued Friday, was necessary to counter the risk to “military readiness.”
“Far from a categorical ban based on transgender status, this new policy . . . turns on the medical condition of gender dysphoria and contains a nuanced set of exceptions allowing some transgender individuals, including almost every Plaintiff here, to serve,” the government’s attorneys wrote. They added in filings that the most recent policy was based on a “detailed explanation for why, in the professional, independent judgment of the Defense Department, this new policy is necessary to further military interests.”
Kollar-Kotelly’s move to maintain the injunction, for now, tracked with action Monday by U.S. District Judge Marsha J. Pechman of Washington state. Pechman gave all sides one week to update their filings in a similar case.
“President Trump’s last-minute maneuvering does nothing to save his unlawful and discriminatory policy,” Washington state Attorney General Bob Ferguson (D) said in a statement. “Nothing the federal government has said or done up to this point, including Friday’s developments, changes anything about the unlawful and discriminatory nature of President Trump’s ban,” Ferguson said.
In a 44-page memo to the president made public Friday, Defense Secretary Jim Mattis wrote, “By its very nature, military service requires sacrifice,” adding, “The men and women who serve voluntarily accept limitations on their personal liberties — freedom of speech, political activity, freedom of movement — in order to provide the military lethality and readiness necessary to ensure American citizens enjoy their personal freedoms to the fullest extent.”
The memo from Mattis recommended disqualifying U.S. troops who have had gender reassignment surgery.
But it in effect “grandfathered” in some others in the transgender community.
Current transgender service members who have not undergone reassignment surgery should be allowed to stay, as long as they have been medically stable for 36 consecutive months in their biological sex before joining the military and are able to deploy across the world, according to the memo.
The memo recommended that military members with gender dysphoria — which is the condition of feeling one’s gender to be opposite that assigned at birth — who were diagnosed since the 2016 Obama decision that allowed open transgender service in 2016 may remain.