The U.S. Department of Defense has announced its intention to begin moving forward with implementing the Trump administration’s plan to bar most transgender individuals from serving in the Armed Forces, defying a court order that remains in place blocking the government from enforcing such a ban.
On Tuesday night, the department released a memo, signed by David Norquist, the second-highest ranking civilian official a the Pentagon, announcing that the administration would begin preparing to roll out the policy, which would officially take effect on April 12, reports USA Today.
Under the administration’s revised ban, known as the “Mattis Plan” (developed by former Defense Secretary Jim Mattis), transgender individuals — specifically those who have not been diagnosed with gender dysphoria — who wish to serve in the U.S. military must serve in, and adhere to grooming standards, based on their assigned sex at birth. They must also file for waivers for use of showers, bathrooms, physical fitness and other standards, according to the Norquist memo.
Under the policy, transgender service members may not pursue gender confirmation surgery or attempt to transition as long as they continue serving, and out transgender individuals who wish to join but have been diagnosed with gender dysphoria or have already transitioned will be barred from enlisting.
Currently-serving transgender service members who have already been treated for gender dysphoria under the Obama administration’s “open service” policy will be allowed to remain and serve in their preferred gender (though LGBTQ advocates fear that may change in the future).
But legal advocates slammed the Pentagon memo, accusing the Trump administration of willfully defying a federal court order that remains in effect. Last week, the D.C. Circuit Court of Appeals ruled that a lower court injunction blocking the administration from implementing the Mattis Plan should have been lifted while the constitutionality of the policy is challenged in the courts. However, the D.C. Circuit also kept the injunction in place for at least 21 days while transgender plaintiffs decide if they want to request en banc review by the full appeals court.
“Not only does the Trump-Pence transgener military ban violate the Constitution, but now the administration is also defying a court order,” said Jennifer Levi, the Transgender Rights Project director for GLBTQ Legal Advocates & Defenders, which is representing the plaintiffs in the Doe v. Trump lawsuit. “With brazen disregard for the judicial process, the Pentagon is prematurely and illegally rolling out a plan to implement the ban when a court injunction remains in place prohibiting them from doing so.”
Levi also argued that the ban, on its merits, is not only based on bias and unfounded fears, but would weaken military readiness, deprive the military of qualified service members, and harm national security.
GLAD, along with the National Center for Lesbian Rights, filed a motion in court on Tuesday objecting to the government’s plans as stated in the Norquist memo, and asking the court to push back against the Trump administration’s defiance of the still-active injunction.
“In addition to lacking any legal basis, the government’s position is belied by its own statement of facts,” the motion reads. “The government states that the Department of Defense intends to issue a directive implementing the Mattis Plan ‘in the near future’ which ‘will not take effect until 30 days after its release.’ That schedule does not warrant disregarding ordinary procedures that operate to safeguard the Plaintiffs’ serious constitutional interests in this case.
“Plaintiffs are considering their options with respect to rehearing; given the short time allowed for that consideration — 17 days at this point — the government will suffer no prejudice if it waits to issue its directive,” the motion continues. “The constitutional rights and livelihoods of thousands of prospective and current transgender service members are at stake, and no one — neither Plaintiffs, not the government, nor the public — would benefit under a scenario where the government proceeds as if the injunction has been dissolved, but subsequent proceedings result in the reinstatement of the injunction.
“Because the injunction remains in effect, the government may not depart from the status quo or implement any new policy inconsistent with that injunction until the court of appeals issues its mandate.”
LGBTQ military groups also blasted the administration’s disregard for law, and continued to challenge its justification for why a transgender ban is necessary.
“By taking steps to implement its ban on open and authentic military service, the Trump-Pence administration has definitively affirmed that when it comes to our national security, they hold unsubstantiated and discriminatory claims as more important than effectively and efficiently completing the mission,” OutServe-SLDN Executive Director Andy Blevins said in a statement.
“This is the start of an incredibly dark chapter in our nation’s history as the Trump-Pence Administration moves to implement an unconscionable ban on our brave transgender service members and qualified recruits who want to serve,” Ashley Broadway-Mack, president of the American Military Partner Association, added. “This horrific policy is even more cruel than ‘Don’t Ask, Don’t Tell’ because the Pentagon explicitly told these service members it was finally safe to come out — and now they are being targeted for discrimination.”
“We stand firmly with our members and the thousands of transgender troops serving bravely across the globe,’ SPARTA President Blake Dremann said in a statement. “While the new policy may go into effect soon, it does not remove or lessen the contributions we continue to provide in the defense of our Nation. We look forward to a time when service members are judged solely on their capability to complete the mission.”
House Speaker Nancy Pelosi referred to Trump’s ban as “bigoted” and “disgusting” and promised to take action to block the ban.
“The President’s years-long insistence on his cowardly ban makes clear that prejudice, not patriotism, guides his decisions. If implemented, this hateful policy would undermine our military readiness and betray our core American values,” Pelosi said in a statement. “No one with the strength and bravery to serve in the U.S. military should be turned away because of who they are.”
U.S. Rep. Jackie Speier (D-Calif.), chairwoman of the House Armed Services subcommittee on personnel, harshly criticized President Trump for pushing for a ban, and vowed to fight implementation of the policy.
“I would like to know what it is that the President is so afraid of?” Speier said in a statement. “Transgender troops have served for decades and carried out multiple deployments, including Afghanistan, Iraq, and Syria, to protect our country and freedoms.
“These tough, brave service members have never used bone spurs as an excuse to dodge their duty and service to our country,” she said in a dig directed at the president’s rationale for not serving during the Vietnam War. “We owe them our gratitude, not government-sanctioned discrimination.”
Speier is one of several representatives who have introduced a bipartisan bill that would allow any person who is qualified, regardless of gender identity, and meets the requisite physical, mental health, and educational eligibility requirements, to enlist or continue serving in the Armed Forces. A similar bill has been introduced in the U.S. Senate.
Shannon Minter, the legal director of the National Center for Lesbian Rights, urged lawmakers to act quickly to combat attempts by the Trump administration to enact the ban as quickly as possible.
“We will continue our fight in the courts until the ban is permanently blocked,” Minter said in a statement. “We also strongly support the bipartisan efforts of Congressional leaders to pass urgently needed legislation to protect transgender troops. We urge everyone who cares about the integrity of our military and the wellbeing of our troops to contact your representatives and tell them to support this legislation.”