Two federal appeals courts, one in Washington and one in Virginia, last week rejected the administration’s request to put on hold orders by lower court judges requiring the military to begin accepting transgender recruits on Jan. 1
Justice Department spokeswoman Lauren Ehrsam said on Friday there was no update on whether the administration would file an emergency application at the Supreme Court.
Lawyers representing currently serving transgender service members and aspiring recruits said they had expected the administration to appeal those rulings to the conservative-majority Supreme Court but were hoping that would not happen.
“It definitely seems like they aren’t going to the Supreme Court, but until we say ‘Happy New Year’ on Sunday night I’m not taking anything for granted,” said Joshua Block, a lawyer with the American Civil Liberties Union.
In a move that appealed to his hard-line conservative supporters, Trump announced in July that he would prohibit transgender people from serving in the military, reversing Democratic former President Barack Obama’s policy of accepting them. Trump said on Twitter at the time that the military “cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.”
Four federal judges – in Baltimore, Washington, D.C., Seattle and Riverside, California – have issued rulings blocking Trump’s ban while legal challenges to the Republican president’s policy proceed. The judges said the ban would likely violate the right under the U.S. Constitution to equal protection under the law.
If the administration does not seek Supreme Court suspension of the lower court injunctions, openly transgender individuals would be able to join the armed forces for the first time, subject to certain medical standards set forth by the Pentagon.
“There has been a tremendous amount of care, thought and planning that has gone into the policy that is set to go into effect on Jan. 1 allowing transgender people to enlist,” said Jennifer Levi, a lawyer with gay, lesbian and transgender advocacy group GLAD. Both GLAD and the ACLU represent plaintiffs in the lawsuits filed against the administration.
The administration has argued that the military was not prepared to train the personnel needed to properly assess transgender applicants.
The Obama administration had set a deadline of July 1 of this year to begin accepting transgender recruits. But Trump’s defense secretary, James Mattis, postponed that date to Jan. 1, which the president’s ban then put off indefinitely.
Trump also has taken other steps aimed at rolling back their rights. In October, his administration said that a federal law banning gender-based workplace discrimination does not protect transgender employees, reversing an Obama-era position. In February,
Trump rescinded guidance issued by the Obama administration saying that public schools should allow students to use the restroom that corresponds to their gender identity.