A federal appeals court has reaffirmed its decision to keep in place an injunction barring the Trump administration from enforcing its transgender military ban, setting the stage for an initial review of the policy at the U.S. Supreme Court before U.S. Associate Justice Anthony Kennedy steps down.
The U.S. Ninth Circuit Court of Appeals denied on Wednesday the U.S. Justice Department’s request to dissolve a preliminary injunction against the ban, which the administration made in the aftermath of Defense Secretary James Mattis’ report justifying President Trump’s policy
The Ninth Circuit had previously denied the Trump administration’s request to dissolve the injunction instituted by U.S. District Judge Marsha Pechman, but the Justice Department made another attempt after Mattis delivered his report to Trump in May. The administration has maintained Mattis’ recommendations justify the transgender military ban, although transgender advocates say the recommendation is filled with junk science.
But in a two-page decision, a three-judge panel on the Ninth Circuit rebuffed the Trump administration’s request to dissolve the stay, determining a reversal of the injunction would alter the status quo as litigation against the ban proceeds through the courts.
“The district court’s December 11, 2017 preliminary injunction preserves the status quo, allowing transgender service members to serve in the military in their preferred gender and receive transition-related care,” the decision says. “Appellants ask this court to stay the preliminary injunction, pending the outcome of this appeal, in order to implement a new policy. Accordingly, a stay of the preliminary injunction would upend, rather than preserve, the status quo.”
LGBT rights groups that filed the lawsuit hailed the decision as an affirmation of transgender people serving in the military and as a blow to the Trump administration. The ruling marked the second time the Ninth Circuit rebuffed the administration on the transgender military service ban, leaving the tally of eight rulings from six courts in favor of halting the policy.
The lawsuit, Karnoski v. Trump, was filed by Lambda Legal and OutServe-SLDN on behalf of nine transgender people – six current service members and three wishing to serve – as well as three organizational plaintiffs: the Human Rights Campaign, the Seattle-based Gender Justice League, and the American Military Partner Association.
Sarah McBride, a spokesperson for the Human Rights Campaign, said as a result of the decision “another court has held off Donald Trump and Mike Pence’s desperate attempts to impose their extreme anti-LGBTQ agenda on the U.S. military.”
“After a string of victories for transgender troops and enlistees at the district court level, this appeals court ruling reinforces that there is simply no need or legitimate reason to bar capable and willing transgender Americans from serving their country,” McBride added.
But the ruling from the Ninth Circuit presents the Trump administration with an opportunity — yet again — to take up the issue with the Supreme Court.
The Justice Department could file a request to stay the injunction with Kennedy, who’s responsible for issuing stays on decisions from the Ninth Circuit. Kennedy could decide the matter himself, but would likely refer the matter to the entire court for a determination.
Although Kennedy has signaled he’ll retire from the court, his departure won’t happen until the end of this month, which means he’d have an opportunity to weigh in on the matter before stepping down. It will potentially be his last decision from the bench and his last LGBT case after writing the decisions in four milestone gay rights cases after 30 years on the court.
Jon Davidson, chief counsel at Freedom for All Americans, said if the Justice Department were to file a stay request before the Supreme Court, the administration “likely will file such a motion before the end of this week.”
“I think that, assuming the Court considers any such stay request before July 31st, Justice Kennedy might well join Justices Ginsburg, Breyer, Sotomayor and Kagan in denying the request (which would mean a stay request would be denied), based on his views about the harms of the government denying individuals ‘equal dignity’ and because the Karnoski case is just one of four in which district courts have enjoined the transgender military ban,” Davidson said. “If the court does not consider a stay request until August, it may be hard for DOJ to get five votes in favor of a stay (which would require at least one of Ginsburg, Breyer, Sotomayor or Kagan to vote in favor of a stay).”
If the Justice Department were to ask the Supreme Court for a stay, it would be a reversal of its earlier position on litigation against the transgender military ban.
After the Ninth Circuit’s earlier rebuff last year of the administration on the policy, the Justice Department declared in December it wouldn’t go to the Supreme Court right away, but “wait for DOD’s study and will continue to defend the president’s and secretary of defense’s lawful authority in district court in the meantime.”
Things have changed now because the Pentagon study the Justice Department expected has come out. Nonetheless, the Trump administration is staying mum on its plans.
A Justice Department spokesperson declined to comment in response to the Washington Blade’s question on whether the administration would file a stay request before the Supreme Court.
Peter Renn, senior attorney with the Western Regional Office at Lambda Legal, affirmed the Trump administration “could seek a stay of the preliminary injunction” with the Supreme Court, but said chances for a stay are low.
“If the government does seek a stay, and the request is referred to the full Supreme Court, it is unlikely that a majority of the Supreme Court would allow the government to immediately enforce its discriminatory plan,” Renn said. “If there is a vote on a stay by the end of this month, it is difficult to imagine that Justice Kennedy will want to cap off his tenure on the court by allowing the military to toss aside transgender people, and their sacrifices for our country, as if they were disposable.”