Trump's Ban on Transgender Troops Is Surprisingly Still Blocked

(Bloomberg) -- The U.S. Supreme Court on Jan. 22 lifted a pair of national injunctions that had prevented President Donald Trump’s ban on transgender military personnel from taking effect during litigation, but the policy is surprisingly still on hold -- at least for now.

That’s because Trump’s 5-4 Supreme Court victory over two sets of current and aspiring transgender troops didn’t involve a third case, in Maryland, where a nationwide injunction remains in place. Immediately after its high court win, the government asked U.S. District Judge George Russell in Baltimore to lift his injunction in light of the majority’s finding, but so far he hasn’t ruled.

The Defense Department on Friday said it can’t say how or when the military will start implementing Trump’s ban until Russell issues his decision.

“We’re still waiting on the court order to lift,” Jessica Maxwell, a spokeswoman for the Defense Department, said Friday in an email. “If that happens, we’ll have more information.”

Complicating matters further, a fourth national injunction issued in federal court in Washington, D.C., could also remain in place even after Russell lifts his order in Maryland. That’s because the federal appeals court in Washington ruled against the plaintiffs in that case on Jan. 4, triggering a set of further appeals deadlines that could keep the injunction in place for weeks.

If the ban takes effect as expected, plaintiffs in all the cases will continue their litigation in hopes of a possible victory at trial. They’ve argued that evidence from the government will show the ban wasn’t based on the findings of military experts and generals, as Trump claimed.

On Jan. 31, the Maryland plaintiffs urged Russell to lift a stay he issued in November that allowed the government to avoid handing over evidence they argue is crucial to proving the ban is unconstitutional. The group said they need to access that evidence sooner rather than later now that the injunction has been “reduced significantly, and may be eliminated altogether.”

“This harm only compounds the longer plaintiffs are delayed in contesting the constitutionality of the ban,” the group, represented by the American Civil Liberties Union, said in the filing.

Then-Defense Secretary James Mattis created a plan to implement the policy last year after Trump tweeted in July 2017 that the government would “not accept or allow transgender individuals to serve in any capacity in the U.S. Military.” Mattis said he wasn’t consulted before the tweet. He left the administration at the end of 2018.

The policy is less absolute than Trump’s original tweet suggested. It lets people continue to serve if they began transitioning their gender during President Barack Obama’s presidency, during which he allowed transgender soldiers to serve openly. But it would bar anyone from starting gender transition while in the armed forces. And the policy would block people from joining the military if they have already transitioned.

The ACLU this week also asked Russell to keep the injunction in place for the organization’s individual plaintiffs even if he lifts it nationally.

“After investing significant time and effort to satisfy the military’s standards, these individual plaintiffs are all on the cusp of being able to enlist in the military or commission as officers, but they will lose that opportunity if the implementation plan’s new accessions policy takes effect,” the civil rights group said in a filing.

©2019 Bloomberg L.P.