DOD Still Can't Implement 'Transgender Ban,' Judge Rules By Dave Simpson Share us on: Law360
(March 19, 2019, 11:15 PM EDT) -- A D.C. federal judge told the government Tuesday that it can't implement its contentious military transgender policy even though other courts have lifted an injunction against it, because the plaintiffs that challenged the ban in Washington, D.C., still have time to ask for a rehearing. While the D.C. Circuit did issue an order in January vacating the D.C. district court’s preliminary injunction against the policy banning certain transgender people from serving in the military, it specifically told the court clerk not to issue a mandate until seven days after a resolution of a petition to rehear its decision, U.S. District Judge Colleen Kollar-Kotelly said Tuesday. The challengers have until March 29 to file for a rehearing or a rehearing en banc, she said. She also shot down the notion that rulings on other injunctions across the country should nix the one before the D.C. federal courts.
"The fact that the three other nationwide preliminary injunctions which had been in place are now stayed has no impact on the continued effectiveness of this court’s preliminary injunction," Judge Kollar-Kotelly said Tuesday. The disputed policy, issued in March 2018, allows transgender people to join or serve in the military only if they don't have gender dysphoria — a disconnect between biological sex and the gender with which they identify that causes distress — and have not already transitioned between genders, with limited exceptions for current troops.
In its January ruling vacating the injunction, the D.C. Circuit found that the district court hadn't given given sufficient credit to the DOD's efforts to address issues with an earlier version of the policy, issued in August 2017 — a blanket ban on military service by openly transgender people — or to military considerations when the judge refused to lift her injunction, originally imposed against the earlier policy.
Last week, the federal government said that the "only logical reading" of the judgment is that it was immediately effective, despite what challengers to the policy have argued. "The D.C. Circuit's decision to deny the stay motion as moot necessarily presumes that this court's injunction does not remain in effect," it said. "Plaintiffs' arguments to the contrary are meritless." Challengers to the policy have argued that the D.C. Circuit's judgment — and therefore the injunction being lifted — will only be finalized once the circuit court's formal mandate is issued. The challengers are a group of current and prospective transgender troops who claim the new policy still amounts to an effective "transgender ban" that violates their constitutional equal protection rights.
The circuit court issued two concurring opinions on March 8 fleshing out its earlier judgment, and has allowed the parties 21 days to ask for a rehearing following those concurrences. The distinction between a judgment and mandate is a technical one that matters only for some purposes, the government argued last week, citing a 1980 Third Circuit opinion — Finberg v. Sullivan — in which that court had noted that "the entry of judgment, rather than the issuance of mandate, marks the effective end of a controversy on appeal" and that issuing a mandate "is largely a ministerial function." In this case, the D.C. Circuit withholding the mandate was simply to allow extra time to ask for rehearing, the government said. With the understanding that concurring opinions would follow the judgment, its judgment still had immediate effect, as demonstrated by the ruling mooting the stay motion, the government claimed. Judge Kollar-Kotelly disagreed Tuesday in her three-page order, noting simply that “absent a mandate, the D.C. Circuit’s January 4, 2019 Judgment vacating this court’s preliminary injunction is not final.” In January, shortly after the D.C. Circuit’s ruling, the U.S. Supreme Court agreed in a 5-4 vote to stay two preliminary injunctions against the U.S. Department of Defense’s policy.
Earlier this month, the DOD sent a memorandum setting an April 12 effective date for the disputed policy — issued after a Maryland federal court lifted the last remaining injunction against the policy. Counsel for the parties did not immediately respond to request for comment Tuesday.
The plaintiffs are represented by Paul R.Q. Wolfson, Kevin M. Lamb, Alan E. Schoenfeld and Adam M. Cambier of WilmerHale, Jennifer Levi and Mary L. Bonauto of LGBTQ Legal Advocates and Defenders, Shannon P. Minter, Amy Whelan and Christopher F. Stoll of the National Center for Lesbian Rights, and Matthew E. Miller, Kathleen M. Brill, Michael J. Licker, Rachel C. Hutchinson and Theresa M. Roosevelt of Foley Hoag LLP. The government is represented by Joseph H. Hunt, Brett A. Shumate, John R. Griffiths, Anthony J. Coppolino and Andrew E. Carmichael of the U.S. Department of Justice's Civil Division.
The case is Doe 2 et al. v. Trump et al., case number 1:17-cv-01597, in the U.S. District Court for the District of Columbia. --Additional reporting by Daniel Wilson. Editing by Emily Kokoll. https://ift.tt/2UKk9ve
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