E. Barrett Prettyman U.S. Courthouse and William B. Bryant Annex, home to the D.C. Circuit Court of Appeals – Photo: Bin im Garten, via Wikimedia.
Two judges on the D.C. Circuit Court of Appeals issued divergent concurring opinions regarding a preliminary injunction that is currently blocking the Trump administration from rolling out a ban of transgender service personnel.
In January, the circuit court issued an unsigned order in the case of Doe v. Trump finding that a lower district court had failed to take into account the nature of the Pentagon’s planned ban, known as the “Mattis Plan,” and how it differed from the broad-based, categorical ban on all transgender service members that President Donald Trump first proposed in July 2017.
As a result, the court has opined that U.S. District Judge Colleen Kollar-Kotelly should have dissolved her earlier preliminary injunction and allowed the Pentagon to begin implementing the Mattis Plan even while challenges to its constitutionality continue to be debated in the courts. But the circuit court did not specifically lift the injunction, keeping it in place until 21 days after it issued more detailed opinions.
In those more detailed opinions, Senior Judge Stephen F. Williams, a Reagan appointee, argued that the lower court had “abused its discretion to the extent it granted plaintiffs additional relief.”
“I write separately because I believe the record and the law require dismissal of plaintiffs’ claims,” argues Williams. “A correct resolution at this stage is important because the decisions of the district court reflect what in my view are wholly mistaken assumptions about the nature of constitutional review of military personnel policy — at least on the facts of this case.
“I should start by clarifying what this case is actually about. It is not about a ‘transgender ban.’ The challenged policy expressly provides that ‘[t]ransgender persons . . . may serve, like all other Service members.’ It is instead about whether the Constitution requires the current administration to reinstate a policy created by the previous administration allowing certain transgender individuals to serve in their preferred gender rather than their biological sex, as all service members have for decades,” Williams continues.
“For those transgender persons for whom the value of serving otherwise than in their biological sex exceeds the value of being in the military, of course, the policy thwarts their wish to serve. The Constitution does not compel the military to yield to their preference.”
In a separate opinion, Judge Robert Wilkins, an Obama appointee, the issue is not about the constitutionality of the Mattis Plan, but the lower court’s incorrect finding that the plan — which only allows transgender individuals to serve if they remain in and present according to their biological sex at birth — was essentially the same as President Trump’s broad-based ban.
Wilkins takes issue with the definition embraced by the lower court and the plaintiffs that a transgender person must necessarily transition. He points to previous established definitions and studies of transgender military personnel to note that some transgender people are indeed capable of living in their biological sex, and thus, the Mattis Plan is not a ban on all transgender personnel.
From Wilkins’ point of view, the fact that some transgender people are physically able to serve in their biological sex is the lynchpin of the case, not whether it is harmful or cruel or a burden to force them to do so. To their credit, both Wilkins and Williams say that the latter issue is a matter for Congress to consider if they wish to change the law and force the Pentagon to allow soldiers who have transitioned to serve. However, Wilkins also argues that the plaintiffs should be allowed to argue that the policy is not facially neutral or that it singles out only transgender people (and no other groups) in court.
GLBTQ Legal Advocates and Defenders, which is representing the plaintiffs in the Doe case, issued a statement responding to the judges’ opinions.
“Judge Williams would give the government carte blanche to enforce any military policy it deems fit — even one that singles out a group of people for discriminatory treatment. We respectfully disagree,” GLAD’s Transgender Rights Project Director Jennifer Levi said.
“Judge Wilkins’ opinion, on the other hand, acknowledges the hardship the proposed military policy creates for transgender service members, and says plaintiffs must be given the chance to submit evidence to show that the Mattis plan does not pass constitutional muster.
“The bottom line here is that the court’s January 4 ruling that the district court gave insufficient weight to the new circumstances in the case, including the issuance of the March 2018 Mattis Plan, was narrow,” Levi added. “The plaintiffs have 21 days to file for rehearing by the full D.C. Circuit bench, and we are considering our options thoroughly. For now, the nationwide injunction prohibiting the ban from going into effect remains in place.”