DOD Can Implement 'Transgender Ban' After DC Circ. Ruling
By Daniel Wilson
Law360 (March 27, 2019, 4:17 PM EDT) The D.C. Circuit on Tuesday issued a formal mandate for its January judgment dissolving an injunction against a Trump administration policy heavily restricting military service by transgender people, clearing the way for the contentious policy to go into effect in April. A three-judge panel ordered the clerk of the court to issue the mandate in response to an emergency motion for clarification filed by the government on March 20, after a district court ruled its injunction against the disputed transgender policy would remain in effect until that mandate was issued.
The panel did not specify why it had chosen to issue the mandate now, having previously said it would wait until after a pending deadline for requesting rehearing, but noted that it came after reading the government's motion and a reply from challengers to the policy. The government said continuing to keep the preliminary injunction in place was "irreconcilable" with the circuit court's January judgment and associated denial of a request to stay the injunction as moot, as well as the U.S. Supreme Court's decision later that month staying "materially indistinguishable" injunctions from two similar cases. The government claimed it should not be put in a "worse position" compared to other similar cases when it had prevailed on its appeal. The challengers, however, said the circuit court set a "clear timetable" for resolving the case and that the government should have respected that timetable rather than pushing forward with a plan to put the disputed policy into effect on Apr. 12.
The issuance of the mandate clears the last legal hurdle in the way of implementing the policy, and Shannon Minter of the National Center for Lesbian Rights, co-counsel for challengers to the policy, said in a statement Tuesday that "the courts have failed to do their job, to the detriment of the military and the country, and allowed a blatantly unconstitutional policy to take effect." "We will keep fighting, and the courts may yet do the right thing, but this is a shameful day," he said. A representative for the U.S. Department of Defense, which is responsible for implementing the policy, said only that "the department will continue with the new policy as scheduled with an implementation date of April 12."
The disputed policy, introduced in March 2018, allows transgender people to join or serve in the military only if they don't have gender dysphoria — a disconnect between one's biological sex and the gender with which one identifies, resulting in distress — and have not already undergone a gender transition, with limited exceptions for those currently serving. Legal challengers, civil rights groups and Democratic lawmakers have all criticized the policy, saying it effectively amounts to a "transgender ban," similar to an earlier version of the policy issued in August 2017. That earlier policy would have imposed a blanket ban on military service by openly transgender people, based on President Donald Trump's stated concerns about military readiness, unit cohesion and allegedly "tremendous" associated medical costs. It was a reversal of a 2016 policy issued under the Obama administration, seeking to allow transgender troops to openly serve for the first time.
Four district court judges issued preliminary injunctions against the blanket ban, and kept them in place as the administration issued its newer policy, prompting the government to appeal. Subsequently, the D.C. Circuit vacated one of the injunctions, ruling that U.S. District Judge Colleen Kollar-Kotelly had erroneously found that there had been no significant change between the initial version of the transgender policy and the overhauled version. Later that month, the Supreme Court stayed two more of the injunctions while a Ninth Circuit appeal moves forward, and a Maryland district judge on March 7 also lifted his injunction, ruling that he was bound by the high court's stay order, after which the DOD announced its plans to implement the transgender policy in April. But challengers to the policy said Judge Kollar-Kotelly's injunction was still effective until the D.C. Circuit issued a formal mandate, and the district court judge agreed, ruling on March 19 that the circuit court's decision wasn't yet final. The circuit court delayed the mandate to allow for a pair of concurring opinions to follow its judgment in March and to give the parties time to ask for rehearing — with those requests due on Mar. 29 — and initially said the mandate would not go into effect until a week after any petition for rehearing was resolved.
Judges Thomas B. Griffith, Robert L. Wilkins and Stephen F. Williams sat on the panel for the D.C. Circuit. The government is represented by Mark R. Freeman, Marleigh D. Dover and Tara S. Morrissey of the U.S. Department of Justice's Civil Division. The challengers are represented by Paul R.Q. Wolfson, John T. Byrnes, Kevin M. Lamb, Jack Starcher, Alan E. Schoenfeld and Adam M. Cambier of WilmerHale, Jennifer Levi and Mary L. Bonauto of GLBTQ Legal Advocates and Defenders, Shannon P. Minter, Amy Whelan, Christopher F. Stoll and Alexander Chen of the National Center for Lesbian Rights, and Matthew E. Miller and Theresa M. Roosevelt of Foley Hoag LLP. The case is Jane Doe 2 et al. v. Shanahan et al., case number 185257, in the U.S. Court of Appeals for the District of Columbia Circuit. Editing by Stephen Berg. https://ift.tt/2FBBlws?
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