The Pentagon has affirmed it will allow transgender enlistments starting Jan. 1 on the same day a federal judge asserted her order against President Trump’s ban on their service means they can accede into the military on that target date.
U.S. District Judge Colleen Kollar-Kotelly, a Clinton appointee, issued the order Monday in response to a request from the U.S. Justice Department for a temporary stay on the portion of her order requiring the Pentagon to admit transgender service members starting Jan. 1.
“For more than a year preceding the summer of 2017, it was the policy and intention of the military that transgender individuals would soon begin to accede,” Kollar-Kotelly said. “Moreover, the court issued the preliminary injunction in this case approximately six weeks ago, and since then defendants have been on notice that they would be required to implement the previously established policy of beginning to accept transgender individuals on January 1, 2018. In other words, with only a brief hiatus, defendants have had the opportunity to prepare for the accession of transgender individuals into the military for nearly one and a half years.”
Kollar-Kotelly also takes a jab at the Justice Department over the process in which it requested a stay, saying the “portrayal of their situation as an emergency is belied by their litigation tactics.” She notes the appeal of her initial decision didn’t come until weeks later and the request for a partial stay didn’t come until December.
“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,” Kollar-Kotelly writes.
The judge had already clarified in response to a request from the U.S. government that her order against Trump’s transgender military ban, issued in response to a lawsuit filed by GLBTQ Advocates & Defenders and the National Center for Lesbian Rights, means transgender enlistments must begin Jan. 1.
That was the target date Defense Secretary James Mattis established for transgender enlistment in a memo he issued in June delaying that change in policy for another six months in response to a joint request from military service chiefs. Transgender enlistments were initially scheduled to begin June 30 as a result of a change initiated in the Obama era under former Defense Secretary Ashton Carter.
Shannon Minter, legal director for the National Center for Lesbian Rights, said in a statement the Trump administration’s assertion “our highly sophisticated military is unprepared to implement a minor policy change after more than a year of preparation are simply not credible.”
“The military has studied this issue extensively and determined that permitting qualified transgender people to enlist and serve will only strengthen our nation’s armed forces,” Minter writes. “This administration’s claim that allowing transgender people to enlist will lessen military preparedness is contradicted by the military’s own conclusions.”
The Justice Department has already appealed Kollar-Kotelly’s decision against Trump’s transgender ban as well as her clarification it means transgender enlistments must begin Jan. 1 to the U.S. Federal Circuit Court of Appeals in D.C. Meanwhile, the Justice Department has also appealed an order against the transgender ban issued by a federal judge in Maryland as a result of a separate lawsuit filed by the American Civil Liberties Union to the U.S. Third Circuit Court of Appeals.
Lauren Ehrsam, a Justice Department spokesperson, is quoted in the Washington Post as saying the department disagrees with the ruling and is “currently evaluating the next steps.”
“Plaintiffs’ lawsuit challenging military service requirements is premature for many reasons, including that the Defense Department is actively reviewing such service requirements, as the president ordered, and because none of the plaintiffs have established they they will be impacted by current policies on military service,” Ehrsam reportedly added.
Prior to the ruling, as reported by the Associated Press, the Pentagon announced Monday it’s preparing to admit transgender people into the armed forces starting Jan. 1 despite the Justice Department’s continued efforts to fight the court orders.
Maj. David Eastburn, a Pentagon spokesperson, told the Washington Blade the U.S. military “will begin processing transgender applicants for military service on January 1, 2018” as legal opportunities to challenging the court orders are evaluated.
Eastburn said the Pentagon will still disqualify potential recruits with “gender dysphoria, a history of medical treatments associated with gender transition and those who underwent reconstruction.”
However, those recruits, Eastburn said, will be allowed into the military if a medical provider certifies they’ve been clinically stable in their gender identity for 18 months and “are free of significant distress or impairment in social, occupational or other important areas.”
White House Press Secretary Sarah Huckabee Sanders, questioned on the Pentagon announcement by NBC News during the daily briefing, said the change reflects the requirements of court orders against Trump’s transgender military ban.
“As of right now, they’re simply complying with a court order and preparing to implement a previous policy to remain in compliance,” Sanders said.
Sanders added, however, the Justice Department is “currently reviewing the legal options to ensure that the president’s directive can be implemented,” deferring additional questions to the department.
Matt Thorn, executive director of OutServe-SLDN, said his organization is “very pleased” the Pentagon is preparing to admit transgender enlistments on Jan. 1 as required by court order.
“The lawsuits filed by all organizations and the injunction by Judge Koller-Kotley should definitively be a sign to this administration that discrimination will not be tolerated in our armed forces,” Thorn added. “The Pentagon never wanted this ban, it was moving ahead with this policy until Trump irrationally tweeted his bigotry about trans service members. We are eager to get back on track with the policy and with the Department of Defense complying with this court order we hope to do that.”