In a three-page notice to the Pentagon, US District Judge Colleen Kollar-Kotelly reminded the Trump administration that the nationwide preliminary injunction she issued in October 2017 against the proposed ban on transgender military service remains in place, at least until such time as the Court of Appeals for the DC Circuit issues a final mandate in its review of her order.
The notice offered a bit of caution against the Defense Department’s March 12 announcement that it planned to implement within 30 days the ban on military service first announced in a series of tweets by President Donald Trump in July 2017.
In a brief order issued on January 4, followed by written opinions released on March 8, the Circuit Court vacated Kollar-Kotelly’s injunction, directing her to reconsider whether the transgender plaintiffs were entitled to a preliminary injunction.
Since three other injunctions against the policy’s implementation had earlier been stayed — by the Supreme Court in January in the case of rulings out of Riverside, California, and Seattle and by the US District Court in Baltimore on March 7 — the Pentagon, on March 12, announced that the ban proposed by then-Defense Secretary James Mattis in February of last year would take effect on April 12.
The DC Circuit, however, has given the plaintiffs 21 days from the March 8 issuance of its written opinions to seek either a rehearing from the appellate panel or an en banc review from the full circuit bench. As Kollar-Kotelly noted, the earliest date, then, that a final order vacating her injunction could come from the Circuit Court would be March 29, ahead of the April 12 implementation announced but at odds with the government’s assertion in a notice she received that “there was no longer an impediment to the military’s implementation of the Mattis Policy.”
The four nationwide injunctions against the policy were issued in the fall of 2017, before Mattis issued his policy recommendations to the president. After the former defense secretary’s plan was announced and accepted by Trump, the government argued that all of the injunctions should be stayed or vacated since Mattis’ policy differed in some respects from the absolute ban Trump initially proposed. Specifically, service members already serving would be allowed to continue in the ranks if their transition were complete. Transgender people could also serve if they had not been diagnosed with gender dysphoria and lived in the gender they were assigned at birth. The policy, then, in the government’s telling, was not a categorical ban based on transgender status, but rather one based on the “disabling” condition of gender dysphoria. Courts, Trump administration lawyers argued, traditionally give deference to the military on deciding eligibility to serve in such circumstances.
Three of the district court judges who issued injunctions, including Kollar-Kotelly, declined to stay them, concluding that the Mattis policy was essentially a recapitulation of the original Trump plan and pressing the government to provide details on the “expert” military judgment that went into the Pentagon’s February 2018 proposal, something Trump officials have held close to the vest.
The DC Circuit panel’s judges, however, made clear in the two opinions published that they accepted the distinction the government is making between the Mattis policy and the original Trump tweetstorm. As for the DC Circuit as a whole agreeing to hear the case en banc, its judges will certainly be mindful that the Supreme Court, in January, found reason to stay two other nationwide injunctions based in the same arguments.
For now, however, Kollar-Kotelly is reminding the Pentagon not to get ahead of itself.