tuesday, 12 december of 2017

U.S. Federal court: military must begin accepting transgender troops by January 1

The US District Court for the District of Columbia on Monday denied the government's request to delay implementation of a preliminary injunction halting portions of President Donald Trump's transgender military ban.

In October, the court granted plaintiffs' request to prevent the Accession Directive (prohibiting transgender individuals from entering the military) and the Retention Directive (allowing for the discharge of transgender soldiers, sailors, airmen and marines currently in uniform) from going into effect as laid out in an August presidential memorandum.

The court found that "a number of factors — including the sheer breadth of the exclusion ordered by the directives, the unusual circumstances surrounding the President’s announcement of them, the fact that the reasons given for them do not appear to be supported by any facts, and the recent rejection of those reasons by the military itself — strongly suggest that Plaintiffs’ Fifth Amendment claim is meritorious."

The government sought clarification of the injunction in late November, asserting that the Secretary of Defense has independent authority to study whether the policy allowing openly transgender troops would "impact military readiness and lethality." The court responded in a November 21 decision, finding that the US Military must begin enlisting transgender individuals starting January 1, 2018.

Monday's ruling arises from the government's request that the court suspend the earlier injunction pending appeal of the October ruling. The district court found that the government had not met the burden imposed on parties seeking to stay a preliminary injunction, namely that the moving party will likely succeed on appeal, that it will suffer irreparable harm, that the other parties will not be substantially harmed, and that the public interest favors the stay. The court rejected the government's claim on all four grounds, repeatedly referring to findings made in its earlier decision.

After finding that the government will not be irreparably harmed by having to begin the process of implementation in advance of the January 1, 2018, deadline, the Court specifically disavowed the government's assertion that the case presented an emergency situation.

[T]he Court notes that Defendants’ portrayal of their situation as an emergency is belied by their litigation tactics. The Court issued its preliminary injunction requiring Defendants to comply with the January 1, 2018 deadline on October 30, 2017. Defendants did not file an appeal of that decision until November 21, 2017, and did not file the current motion for a stay of that deadline until December 6, 2017, requesting a decision by noon today, December 11, 2017. 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 plaintiffs in this case are current and aspiring transgender service members, some of whom have been have served in the military for decades, and have been on active duty in Afghanistan and Iraq.
At least two other lawsuits challenging the transgender military ban are currently pending in other federal courts.

In June 2016, the Department of Defense signaled a departure from its long-established policies banning recruitment of openly transgender military personnel. Approximately a week later, a formal announcement arrived from then-Secretary of Defense Ash Carter who introduced the government's new policy that allows transgender individuals to serve openly in the military, effective immediately. This approach was to be fully implemented by July 2017, but the government reversed course under the Trump administration.

(Published by Jurist - December 11, 2017)

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