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A Court Just Ruled Trump's Transgender Military Ban Should Take Effect, But It Won’t Change Anything Yet

The US Court of Appeals for the DC Circuit contends it's not a ban because transgender people can serve as their birth sex — that is, they can pretend they're not transgender.

Last updated on January 4, 2019, at 2:11 p.m. ET

Posted on January 4, 2019, at 1:07 p.m. ET

Retired Army lieutenant colonel Ann Murdoch, who is transgender and has protested President Donald Trump's ban.
Mandel Ngan / AFP / Getty Images

Retired Army lieutenant colonel Ann Murdoch, who is transgender and has protested President Donald Trump's ban.

For the first time since President Donald Trump announced a ban on transgender military personnel in 2017, the administration scored a win in court, with a federal appeals court ruling Friday that the ban could take effect — but it won’t, for now.

The decision from the US Court of Appeals for the DC Circuit could boost the administration’s position as the litigation goes forward. But it won't result in any immediate change in policy because injunctions blocking the ban issued by other courts remain in effect.

The three preliminary injunctions still in place, issued by judges in Washington state, California, and Maryland, suspend the ban nationwide, allowing transgender personnel to continue to serve and enlist in the military.

In Friday’s decision, a three-judge DC Circuit panel found that the district court judge in Washington, DC, who had blocked the administration from enforcing the ban, made an "erroneous finding" when she ruled that the plan "was the equivalent of a blanket ban on transgender service." Instead, the court said the ban wasn't a ban at all, because transgender people could still serve if they presented as their sex identified at birth or, in other words, pretended they’re not transgender.

The court also found that the administration made “substantial” changes from the original version of the ban first announced on Twitter by Trump in July 2017, fixing problems that led judges to block it in the first round of litigation. It’s a finding that echoes the evolution of Trump’s travel ban, which was ultimately upheld by the US Supreme Court after the administration went through several versions that were blocked by the lower courts.

Jennifer Levi, an attorney for GLBTQ Legal Advocates & Defenders, which has led the ban's challenge in the case along with the National Center for Lesbian Rights, told BuzzFeed News that the court’s analysis is "a complete distortion of who transgender people are, and for now, the court is buying it.”

Levi compared the judges’ logic to the government's past defense of bans on same-sex marriage, when officials said gay people weren't denied equal rights because they could marry people of the opposite sex like everybody else. This ruling, she said, "is the same argument."

After repeatedly losing at the district court level when defending a revised version of the trans military policy, which was released last March, the administration appealed. It then attempted to skip the circuit courts, petitioning the Supreme Court in November to hear the cases before any appeals court had ruled, a move that’s generally disfavored by the justices. The government asked the justices to stay the lower court injunctions until the appeals were resolved.

The Supreme Court hasn’t said yet whether it will hear the cases now; it is scheduled to consider the Justice Department's petition at a nonpublic conference scheduled for Jan. 11. The 9th Circuit, which is handling cases out of Washington state and California, has yet to rule.

A Justice Department spokesperson told BuzzFeed News, simply, “We are pleased.”

The DC case, Doe v. Shanahan, referring to acting Defense Secretary Patrick Shanahan, was the first of four lawsuits to challenge the ban, filed shortly after Trump tweeted his plans in July 2017.

On Friday, however, the judges contended the policy was not a total prohibition on transgender military service. They said the court record doesn’t support claims that all transgender people have gender dysphoria or transition to their preferred gender — factors that would disqualify them from serving under the administration’s policy.

“They characterized these as ‘essential’ and ‘defining’ aspects of being transgender ... we can find nothing in the record to support this definition of being transgender, as all of the reports supporting both the [former defense secretary Ash] Carter Policy and the [former defense secretary James] Mattis Plan defined transgender persons as ‘identifying’ with a gender other than their biological sex,” the court said. “Indeed, those reports repeatedly state that not all transgender persons seek to transition to their preferred gender or have gender dysphoria.”

The court noted that the "panel of experts convened by now-former Defense secretary James Mattis observed that there are transgender persons who 'have served, and are serving, with distinction under the standards for their biological sex.'"

“Thus, the District Court erred in finding that the Mattis Plan was a blanket transgender ban,” the court found.

The DC Circuit panel — Judges Robert Wilkins, Thomas Griffith, and Stephen Williams — also found that the latest version of the policy didn't suffer from the same flaws as the administration’s first ban on transgender people serving in the military. The current policy, “for example, contains a reliance exemption that will allow at least some transgender service members to continue to serve and receive gender transition-related medical care,” the court said.

"The government took substantial steps to cure the procedural deficiencies the court identified in the enjoined 2017 Presidential Memorandum," the court added Friday, noting that the Trump administration assembled a "panel of military and medical experts" that argued transgender people would hinder the military if they served openly.

The military, further, can treat soldiers differently on the basis of their sex, the court said, noting that the Supreme Court has found excluding women from the draft was constitutional because it reflected the fact that the sexes are not "similarly situated."

The court made clear this was not a ruling on the final merits of the of the case's legal issues, but rather that the lower court's injunction should be lifted while the case proceeds. Still, they said the current ban "plausibly relies upon" the professional judgment of "appropriate military officials."

UPDATE

Updated with additional information about the status of proceedings before the US Supreme Court.

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