Still insisting that the Pentagon will not be ready to accept transgender recruits into the military on January 1, even though that process was put in motion one day ago, the Trump Administration moved to a higher federal court late on Monday to seek a postponement.
In a filing at the U.S. Court of Appeals for the District of Columbia Circuit, Administration lawyers said that the military needs more time to study what its policy should be on service in the military by individuals who are transgender. They argued that the study will be completed by February 21, so any delay would be of no harm to potential recruits.
Meanwhile, a third federal judge on Monday issued an order temporarily barring enforcement of the Administration’s ban on transgender people continuing to serve or enlisting in the future. U.S. District Judge Marsha J. Pechman of Seattle ruled that the policy probably will be found unconstitutional, when a full trial is completed, because it likely violates constitutional guarantees of legal equality and fair treatment of transgender people already on duty or seeking to join, and it likely violates free-speech rights by punishing transgender people for speaking out about their gender identity.
The Trump Administration has already filed appeals in two of the three cases in which the transgender ban had been temporarily blocked, but its request for a delay of those orders by a federal appeals court was the first such plea. That came in a case pending in a federal trial court in Washington, D.C., one day after that judge refused a request to put her ruling against enlistment of transgender recruits on hold during the government’s appeal.
Within hours after U.S. District Judge Kolleen Kollar-Kotelly ruled on Monday that the Pentagon could not delay the opening of transgender enlistments as of January 1, a Pentagon news release said the military was moving to implement the judge’s order, so that enlistments would be allowed while the Administration’s appeal proceeded in the courts.
It was after that announcement had come out that the Justice Department, which controls what the government does in the courts, went ahead and asked the D.C. Circuit for a swift order postponing the January 1 opening of enlistments, followed by a more lasting order to keep those enlistments on hold while the government appeal unfolds, which could take several weeks.
The court filing seeking delay did not mention that the military had already moved ahead with implementation of the judge’s order, but that action might have an effect on whether the Circuit Court views the postponement delay as necessary. The filing repeated all of the legal arguments on the underlying validity of the plan to ban transgender from the armed forces that had been made, and were rejected, by Judge Kollar-Kotelly.
Although the judge had found that the military was well on its way toward being ready to accept new transgender recruits, the new filing in the appeals court disputed that, saying that the task is significantly broader than the judge had found. The document said that the Pentagon will finish its study of what transgender policy would be by February 21, when it plans to submit recommendations to President Trump.
The fact that the Justice Department continued to seek delay by going up the court ladder to the appeals court in Washington suggested strongly that it probably would move on to the Supreme Court if its request is turned down by the appeals court. There probably would be time enough for both the appeals court and the Supreme Court to act, at least on a temporary basis, before the transgender enlistments were to begin at the opening of the new year.
Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.
