Barring last-minute intervention by the Supreme Court, the military’s ban on enlisting transgender troops is set to fall next week, despite President Donald Trump’s tweets.
If so, it would be the rare instance of a major change in U.S. military policy that takes place despite the opposition of the commander in chief.
But it was also unusual for the president to try to halt a developing policy by issuing a tweet that surprised top officials.
A series of federal judges has rejected the president’s position, most recently with rulings on Friday, and administration lawyers are running out of time to revive the ban before the Pentagon plans to begin accepting transgender recruits on Jan. 1.
In July, Trump tweeted that he had decided he would “not accept or allow transgender individuals to serve in any capacity in the U.S. military.” The tweet came with little, if any, advance consultation with military officials, who have not shown much enthusiasm for reinstating the ban.
Trump insisted the Pentagon not follow through on the Obama administration’s plan to end the ban on enlisting transgender troops in 2017. The outgoing administration had conducted a lengthy study within the U.S. military and also funded a RAND Corp. analysis which found that other nations, including Australia, Canada, Israel and the United Kingdom, had suffered no loss of operational effectiveness, readiness or cohesion after enlisting transgender personnel.
At Trump’s insistence, Defense Secretary James N. Mattis put off until Jan. 1 the time when transgender individuals could openly enlist. The president also called on the military to “discharge” transgender personnel and to halt funding of “sex reassignment surgical procedures.”
But in recent weeks, four federal judges have blocked part or all of Trump’s directives. The latest ruling came Friday from U.S. District Judge Jesus Bernal in Riverside. He acted based on a suit filed on behalf of seven plaintiffs who wish to serve in the military, including Aiden Stockman, a transgender man from California who wants to join the Air Force.
The judge agreed with the plaintiffs that the president’s ban discriminated improperly based on sex or gender, and therefore, violated the Constitution’s promise of the equal protection of the laws.
Also Friday, two U.S. appeals courts — in Washington, D.C., and Virginia — refused emergency requests from the administration to lift lower court orders and maintain the enlistment ban after Jan. 1.
“It must be remembered,” the U.S. Court of Appeals for the District of Columbia Circuit said, that the transgender individuals who went to court seek “to serve their nation with honor and dignity, volunteering to face extreme hardships, to endure lengthy deployments and separation from family and friends and to willingly make the ultimate sacrifice of their lives if necessary.”
In response, Justice Department spokeswoman Lauren Ehrsam said, “We disagree with the court’s ruling and are currently evaluating our next steps.”
Shannon Minter, legal director for the National Center for Lesbian Rights, said “we are grateful to the D.C. Court of Appeals for recognizing that our plaintiffs simply want to serve their country. … Experience has shown that allowing qualified transgender candidates to serve strengthens our military and our country.”
RAND had estimated that there were between 1,300 and 6,600 active duty transgender service members, Minter noted.
The administration’s lawyers have argued repeatedly that courts must defer to the president’s judgment on military matters. It would be unusual if they did not file an emergency appeal in the Supreme Court. To prevail, they would have to convince at least five justices that the government would suffer an “irreparable harm” if the ban on enlisting transgender personnel ended on Jan. 1.
The Department of Defense has been getting ready for the change. A Dec. 8 memo advised sector and battalion commanders on “transgender applicant processing.”
“As always, every applicant will be treated with dignity and respect,” it said, instructing commanders that recruits must be addressed by the name and gender pronoun they prefer.
“Applicants will be evaluated per established DoD standards for the purpose of qualifying for Military Service,” the memo said. “Ultimately, Commanders are responsible for upholding and maintaining the high standards of the U.S. military at all times and in all places.”
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