The Trump administration said Friday it will soon implement a ban on most transgender people in the military, despite lawyers for transgender challengers insisting a federal court injunction still blocks the policy.
In a notice filed in the District Court for Washington, DC, the Justice Department said “there is no longer any impediment to the military’s implementation” of the ban, adding that the Pentagon plans to release a memorandum “formally implementing the new policy in the near future.”
But Jennifer Levi, a lawyer for GLBTQ Legal Advocates & Defenders, a group representing the challengers, was adamant the ban remains blocked by a previous court order.
“The government is wrong,” she told BuzzFeed News.
The disagreement is part of a complicated legal dispute. The administration’s suggestion that it will move forward with the ban comes one day after a federal court in Baltimore lifted a preliminary injunction that had prevented President Donald Trump from enacting the ban, which followed a Supreme Court order in January that lifted similar injunctions in two other courts.
But a fourth preliminary injunction had also been issued in the DC District Court blocking the ban. Although a three-judge panel in the DC Court of Appeals vacated that injunction in January, the court said it would not mandate that the lower court withdraw its injunction until the three appellate judges issued their separate opinions in the case. Those opinions were issued Friday, which started a 21-day countdown for challengers to seek a rehearing before a larger panel of judges.
Still, the appeals court had yet to issue a mandate to the lower court to withdraw the preliminary injunction.
“The mandate clearly has not issued so the injunction remains in place,” Levi said in an email. “The injunction does not and cannot dissolve automatically without a court order and, in this case, there is no court order until the mandate issues.”
The Justice Department’s filing acknowledged that the “D.C. Circuit has not issued the mandate,” but said in its filing on Friday, “Nevertheless, the D.C. Circuit’s judgment vacating this Court’s preliminary injunction took effect when entered” in January.
A Pentagon spokesperson told BuzzFeed News on Thursday, "The department [of Defense] is now free and clear of any injunctions against implementation” of the ban. But the spokesperson did not answer questions about the injunction in the DC case.
In June 2016, the Obama administration lifted a decadeslong ban on transgender service members after finding they didn’t harm the military. Trump reversed that decision in 2017, saying that transgender people would render the military “burdened with medical costs and disruption.” Trump formalized the policy in a memorandum that August — but four courts soon issued preliminary injunctions putting the ban on hold as legal challenges moved forward. All four of the challenges will proceed even if Trump implements the ban.
The policy evolved in February 2018, when former defense secretary James Mattis recommended banning most transgender personnel but allowing those who’d already joined and transitioned to remain in the ranks. Trump then rescinded his own 2017 order while officials sought to implement Mattis’s recommendations.
The Justice Department filing on Friday said that the new policy memorandum “will not take effect until 30 days after its release.”
“To be told that I’m now a burden, after nearly 19 years of service, it’s really hard to understand,” Chief Warrant Officer Lindsey Muller, an active-duty Army attack helicopter pilot who also served during the Iraq War, told BuzzFeed News in January.
Describing phone calls from other transgender soldiers and applicants, Muller said, “They are terrified.”