A federal judge in Washington D.C. ruled Monday afternoon that, beginning January 1, the U.S. military will be required to allow enlistment of openly transgender recruits.
The order issued by Colleen Kollar-Kotelly, a Clinton-appointee on the U.S. District Court for the District of Columbia, is embedded at the bottom of this post. She had already ruled on October 30 that the military could not delay implementing this new policy, which had been finalized under the Obama Administration but not fully put into effect. The government requested that she stay her ruling pending appellate review. She declined to do so Monday.
In 2016, the military began allowing transgender individuals to serve openly, but crucially, the change applied only to current service-members. In June 2017, Defense Secretary James Mattis announced that he would delay plans to allow new transgender recruits to enlist.
“There is absolutely no support for the claim that service of transgender individuals would have any negative effect on the military at all,” Kollar-Kotelly wrote in rejecting the government’s argument that the accession of transgender recruits would cause “irreparable harm” to the military. Government lawyers and judges have fought bitterly over whether or not courts are required to defer to President Trump’s judgment on executive matters, no matter how wrong or unsupportable judges claim it is. This ruling continues what well may be the motif of Year I of the Trump Administration: Trump says one thing — often on Twitter — and judges simply say that he’s wrong.
The judge also appeared to fault the government for dragging its feet in opposing her October injunction. “There is also no indication that Defendants have sought any sort of expedited review of their appeal, the first deadlines in which are not until January, 2018. If complying with the military’s previously established January 1, 2018 deadline to begin accession was as unmanageable as Defendants now suggest, one would have expected Defendants to act with more alacrity.”
The Associated Press, along with other outlets, misreported the story, misleading readers into thinking that the Pentagon is defying Trump because it disagrees with his views on the subject.
In reality, the Pentagon is simply complying with the ruling, and there is no evidence that Trump has instructed the military to ignore the order. The actual AP story acknowledges this. But that story has been retweeted several hundred times, while the misleading tweet has been retweeted more than 20,000 times.
Mark Joseph Stern, a journalist who covers law for Slate, confirmed that the tweet is wrong.
Needless to say, it would be a devastating commentary on Trump’s control over his personnel if military officers felt free to ignore him. In many cases, Trump has been undermined by appointees hostile to his campaign promises, leading to official bureaucratic policy being out-of-sync with the president’s preferences.
Last month, the Department of the Interior appeared to blindside Trump by reversing a policy designed to discourage elephant poaching in Africa. After widespread backlash, Trump tweeted that he would shelve the reversal pending “review.” More recently, the State Department, headed by Rex Tillerson, basically declared that Trump’s Jerusalem declaration is meaningless and that U.S. diplomacy will continue to hew to the status quo.
So this is actually a genuine problem that has dogged Trump. But in its eagerness to portray Trump as a hapless commander-in-chief sidelined by his own people — even “the generals” that he’s so fond of — the AP overlooked the fact that the military has no choice but to delay implementing Trump’s policy. A minor detail, one supposes.
It is unclear how quickly the D.C. Circuit will rule on the government’s stay request. As it happens, the D.C. Circuit has a 7-4 Democratic-appointed majority (with a fair number of GOP-appointed senior judges), so unless the government happened to draw a panel with two conservatives on it, Kollar-Kotelly’s order will probably stand for the foreseeable future.
Jane Doe Vs. Donald Trump by Legal Insurrection on Scribd
The DOJ files an emergency motion for stay and partial stay pending appeal
Transgender Emergency Appeal by Legal Insurrection on Scribd
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