It’s official: as of 12:00 a.m. January 1, 2018, the U.S. military will be open to transgender recruits—a change in policy that had been set in motion by Former Defense Secretary Ashton Carter in 2016.
Last night, the Department of Justice announced that it would not ask the Supreme Court to stay several injunctions requiring the military to go forward with Carter’s plan—at least until a “study” that President Trump ordered is completed.
As Larence Hurley reports for Reuters:
Transgender people will be allowed for the first time to enlist in the U.S. military starting on Monday as ordered by federal courts, the Pentagon said on Friday, after President Donald Trump’s administration decided not to appeal rulings that blocked his transgender ban…In September, the Pentagon said it had created a panel of senior officials to study how to implement a directive by Trump to prohibit transgender individuals from serving. The Defense Department has until Feb. 21 to submit a plan to Trump.
In 2016, the military began allowing transgender individuals to serve openly, but crucially, the change applied only to current service-members. Carter fixed July 1, 2017 as the date when new transgender recruits would be allowed to join.
But on the eve of that deadline, Defense Secretary James Mattis delayed Carter’s proposed change until 1/1/2018. In July, Trump tweeted his opposition to transgender individuals serving in the army, and a month later, the White House issued a memorandum instructing Mattis to, among other things, indefinitely suspend Carter’s still-unimplemented policy.
The ACLU and other groups sued to prevent the Department of Defense from further postponing the acceptance of new transgender recruits.
On October 30, a federal judge in Washington D.C. prohibited the military from listening to Trump by delaying the enlistment of transgender individuals beyond January 1. Challengers obtained three similar injunctions from district courts within the Fourth and Ninth Circuits. It’s almost as if the ACLU knows that there are certain places where the Trump administration always loses.
The district court opinions all make similar arguments, but since the D.C. one was entered first, I’ll explain that one. The judge, Clinton-appointee Colleen Kollar-Kotelly, reasoned that transgender individuals constitute a “quasi-suspect class” because they are politically weak and face persecution. She further argued that Trump’s directive preventing their accession is “a form of discrimination on the basis of gender,” citing a series of lower court decisions that have held similarly.
Since the Supreme Court’s decision in Craig v. Boren (1976), “classifications by gender” have been subject to intermediate scrutiny, meaning the government must show that the classification (1) furthers an important government interest and (2) does so by means that are substantially related to that interest. Kollar-Kotelly held that Trump’s memorandum was “inextricably intertwined with gender classifications” but did not substantially further the goals of military preparedness and cohesion. “There is absolutely no support for the claim that the ongoing service of transgender people would have any negative effective on the military at all,” she concluded.
The government had asked the Fourth, Ninth and D.C. Circuits to stay the district rulings. The Fourth and D.C. Circuits said no, and the Ninth Circuit has not yet ruled.
Explaining its decision to hold off on requesting SCOTUS review, the DoJ said that the Department of Defense will be releasing an “independent study of these issues in the coming weeks.” I would guess that the DoD is trying to cobble together evidence to refute the judge’s assessment that accepting new transgender recruits is harmless. And government lawyers figure there’s no point in seeking SCOTUS intervention now if their case might become much stronger in a month. There are certainly four votes against the government, and the DoJ clearly isn’t confident that Kennedy will side with them right now.
The DoJ last night also dropped its appeals of the preliminary injunctions from the district courts, which suggests the government foresees a Supreme Court stay as its only avenue to relief before the merits are litigated.
In any event, the Trump administration has lost this case for the foreseeable future.
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