A unanimous three-judge panel of the US Court of Appeals for the District of Columbia Circuit ruled on January 4 that District Judge Colleen Kollar-Kotelly should not have denied a Justice Department motion to dissolve her preliminary injunction against the Trump administration’s transgender military service ban going into effect. Kollar-Kotelly issued that injunction in October 2017.
The court did not issue a formal opinion — instead releasing a “Judgment” that was not designated for publication — but it indicated that “separate opinions” by the judges “will be filed at a later date.”
The ruling, though quickly described in the press as a victory for the Trump administration, will have no immediate effect, since nationwide preliminary injunctions against implementing the ban issued by three other district courts in other appellate circuits remain in effect.
Still, the explanation issued by the judges marks the first time any federal judge has found it appropriate to adopt a deferential standard of review either to Trump’s original policy declaration — in tweets in July 2017 followed soon after by a White House memo — or to the implementation policy adopted by former Defense Secretary James Mattis with the president’s approval in February 2018.
In her October 30, 2017 ruling granting the plaintiffs’ motion for a nationwide preliminary injunction, Kollar-Kotelly found they were likely to prevail on the merits of their claim that the ban announced by Trump violated their Fifth Amendment equal protection rights and that allowing it go into effect would cause them irreparable injury. The judge did not credit the government’s argument that an injunction would be harmful to national security.
Kollar-Kotelly was the first judge to enjoin the ban, but three other district courts — in Baltimore, Seattle, and Riverside, California — issued similar opinions authorizing virtually identical nationwide preliminary injunctions over the ensuing weeks.
Subsequent to these injunctions taking effect, a task force of “experts” (none of them named) appointed by Mattis issued a report laying out an implementation plan. Knowledgeable observers noted striking resemblances between this report and articles published by conservative think tanks opposed to transgender rights.
The Justice Department pointed to the “new” Mattis plan to argue that the preliminary injunctions should be dissolved because the Pentagon findings were sufficiently different from what Trump had originally announced to change the legal analysis. Three of the four district courts have denied the Justice Department’s motion — which is still pending in the fourth court — concluding that the Mattis policy was substantially the same as the Trump policy.
The Justice Department appealed the three rulings to the DC and Ninth Circuit Courts of Appeals. As of January 4, the Ninth Circuit has not ruled, though it earlier refused to stay the injunctions issued by the district judges in Seattle and Riverside.
Impatient at the pace of litigation, Solicitor General Noel Francisco, in late November, filed petitions at the Supreme Court seeking to leapfrog the courts of appeals and have the high court directly address whether the preliminary injunctions should be lifted. He has since gone back to the high court seeking stays on the preliminary injunctions or to have them narrowed to apply only to the individual plaintiffs rather than having nationwide effect. The Supreme Court is scheduled to consider the solicitor general’s requests in its private conference on January 11.
The DC Circuit panel that ruled on January 4 consisted of Judges Thomas B. Griffith (appointed by President George W. Bush), Robert L. Wilkins (appointed by Barack Obama), and Senior Judge Stephen F. Williams (appointed by Ronald Reagan).
The panel found that Kollar-Kotelly “clearly” erred in concluding that the Mattis policy adopted in February 2018 was substantially the same as the Trump policy she enjoined the previous October. Unlike the original policy, the court pointed out, Mattis’ plan was not a total ban. It “grandfathers” currently serving transgender personnel who had “come out” after Obama administration Defense Secretary Ashton Carter lifted the ban on transgender military service in July 2016. Many of those service members then initiated transition — including in some cases complete surgical gender affirmation — and are successfully serving in the gender with which they identify. Mattis would let them continue to serve.
The court also accepted a government assertion that the plaintiffs’ lawyers argue is a semantic game — that Mattis’ experts reconfigured the ban to be based not on transgender identity, but rather on a diagnosis of “gender dysphoria.” Individuals who identify as transgender but have not been diagnosed with gender dysphoria would be allowed to enlist and serve, provided they do not seek to transition and that they serve in the gender they were assigned at birth. The court of appeals pointed out that the plaintiffs’ lawyers stated in their briefs and arguments that not all transgender people are diagnosed with gender dysphoria or seek to transition.
In accepting this argument from the government, the appeals panel sidestepped the equal protection argument put forward by the transgender plaintiffs.
In contrast, the district judges had found that in practical terms the Mattis construction on the issue and the original Trump ban amounted to the same thing. The “grandfathered” personnel protected under the Mattis plan total an estimated 900.
The appeals court also found that the district court should have accepted at face value the government’s assertion that Mattis relied on “experts” and so given the military the customary judicial deference regarding personnel matters.
The DC panel stated that it was not speaking to the ultimate merits of the case, vacating Kollar-Kotelly’s preliminary injunction but “without prejudice.” And with the other three nationwide preliminary injunctions still in effect, the Trump administration is still blocked, for now, from implementing any transgender ban.
