With multiple court rulings ensuring the Pentagon must admit qualified openly transgender people into the U.S. military starting Monday, the U.S. Justice Department is giving up on litigation fighting those decisions in federal appeals courts and won’t seek a stay from the U.S. Supreme Court.
A Justice Department official told the Blade on Friday evening the administration won’t fight preliminary injunctions against Trump’s ban in appeals courts, but will still argue on behalf of Trump’s policy at the district court level.
“The Department of Defense has announced that it will be releasing an independent study of these issues in the coming weeks,” the DOJ official said. “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 Justice Department on Friday withdrew its appeals of three court rulings against Trump’s transgender military ban — one from a federal court in D.C., another from a federal court in Maryland and another from a federal court in Washington State. A federal court in California also ruled against Trump’s trans ban, but the Justice Department had yet to appeal that decision.
With these district courts denying stay on their decisions and the U.S. Court of Appeals for the Federal Circuit and the U.S. Fourth Circuit Court of Appeals also refusing to grant stays, the Justice Department could have sought relief from U.S. Chief Justice John Roberts as litigation proceeded. The announcement from the Justice Department, however, means the Trump administration won’t take that option.
In July, Trump announced via Twitter he would ban transgender people from the armed forces “in any capacity,” following up with a directive making good on that promise. As a result of litigation from LGBT legal groups, court enjoined the Pentagon from enforcing that directive. The Justice Department sought a stay on those decisions, but only as it pertained to allowing openly transgender people to enlist in the armed forces.
The Pentagon had announced earlier this month it was prepared to allow openly transgender people to enlist in the armed forces beginning on Jan. 1 as a result of court orders against Trump’s ban. With the Justice Department giving up on seeking stays of those decisions, there is no doubt the U.S. military will start to admit qualified openly transgender people at that time.
Peter Renn, senior attorney at Lambda Legal who led litigation against Trump’s ban in Washington State, said the decision means “we don’t have to hit pause on the constitutional rights of transgender people” who want to enlist in the U.S. military.
“Federal district courts in D.C., Maryland, Seattle, and Los Angeles have seen through the administration’s hollow arguments in support of discrimination and rejected them, as have the federal appeals courts,” Renn said. “The war isn’t over, but the government has waived the white flag before this battle even got started. The administration clearly saw the writing on the wall and withdrew its desperate effort, for now, to block transgender people from openly enlisting in the armed services and serving their country.”
The decision from the Justice Department doesn’t mean the litigation is entirely resolved. The administration will continue to argue in district court in favor of Trump’s ban as the Pentagon implements openly transgender service, although the chances of the administration succeeding are slim in the aftermath of trial courts granting preliminary injunctions against Trump’s policy.
Joshua Block, senior staff attorney with the American Civil Liberties Union who led the litigation in Maryland, said the move was “a victory for our country and all of the brave men and women who are transgender, and are ready, willing, and able to serve.”
“Thousands of men and women who are transgender are already serving and meeting the same standards of fitness and deployability that apply to everyone else,” Block said. “We will continue to fight for our clients until a final judgment is issued striking down President Trump’s unconstitutional ban for good.”