The Pentagon. Photo: Department of Defense – Photo: Master Sgt. Ken Hammond, U.S. Air Force, via Wikimedia.
On Wednesday, the 9th U.S. Circuit Court of Appeals denied the Trump administration’s appeal of an injunction blocking it from moving forward with its attempts to ban transgender people from serving in the U.S. military.
The original injunction was issued in December 2017 by U.S. District Judge Marsha Pechman, of the Western District of Washington, and blocked the Pentagon and the Trump administration from moving to implement a broad, categorical ban prohibiting transgender people from serving “in any capacity.”
The Trump administration subsequently issued “new” guidance — nicknamed “Deploy or Get Out” — that would allow some transgender people to serve, provided they had not been diagnosed with gender dysphoria, had not attempted to transition (either with hormones or gender confirmation surgery), and were still living and presenting in a manner that matches their assigned sex at birth. It then asked Pechman to stay her preliminary injunction while the administration and LGBTQ advocates battle over the merits of the policy.
But Pechman refused to stay her injunction, finding that the revised ban was not substantially different than the original categorical ban. In her opinion, Pechman found that the Trump administration had “done nothing to remedy the constitutional violations that supported entry of a preliminary injunction in the first instance.”
In response, the Trump administration appealed to the 9th Circuit, asking the federal court to force Pechman to issue a stay of her injunction, and allowing the revised ban to move forward. But the appeals court rejected that appeal, leaving Pechman’s injunction in place while the opposing parties head to trial. The case is currently on track to go to trial in April 2019.
“A stay pending appeal ‘is an intrusion into the ordinary processes of administration and judicial review,” the three-judge panel wrote in its opinion, citing precedent from the case of Nken v. Holder. “Appellants ask this court to stay the preliminary injunction, pending the outcome of this appeal, in order to implement a new policy. Accordingly, a stay of the preliminary injunction would upend, rather than preserve, the status quo. Therefore, we deny the motion for a stay of the December 11, 2017 preliminary injunction.”
By refusing to stay the preliminary injunction, the court allows transgender service members to continue serving in the military and receive transition-related care. It also allows openly transgender recruits who meet all the proper qualifications to continue enlisting in the Armed Forces without fear of being turned away.
The plaintiffs, which include six service members, three individuals seeking to enlist, the Human Rights Campaign, the Seattle-based Gender Justice League, and the American Military Partner Association, held up Wednesday’s ruling as yet another defeat for the administration and a victory for LGBTQ advocates.
“Seven courts across the country have considered this so-called plan, and seven courts have recognized that there is no defensible reason to bar transgender Americans from serving our nation,” Staff Sgt. Cathrine Schmid said in a statement.
“Being transgender has no impact on my ability to perform my duties,” Schmid added. “I’m grateful that the courts to date have recognized the value in our service, and I look forward to the day when we can put this argument behind us and focus on what’s really important — the accomplishment of our mission, and the welfare of our service members.”
“The Ninth Circuit, much like the six other courts to have considered the proposed policy, has recognized it for what it is — blatant and impermissible discrimination,” Lambda Legal Senior Attorney Peter Renn said in a statement. “The court rejected the government’s attempt to ‘upend’ the status quo, as well as the lives of transgender people serving and seeking to serve our country. … What more evidence does the administration need before it abandons this discriminatory and harmful scheme to prevent brave and qualified transgender people from serving their country?”
Peter Perkowski, the legal director of OutServe-SLDN, says that the 9th Circuit’s decision to uphold Pechman’s injunction bolsters her previous opinion that the plaintiffs are likely to succeed in proving that the ban is a form of discrimination.
“The administration has failed to come up with any adequate rationale for the president’s ill-conceived tweets of last July that justifies their blatant discriminatory nature, and we are confident it never will,” he said.