On January 22 the Supreme Court granted applications by Solicitor General Noel Francisco to stay the two nationwide preliminary injunctions that were issued in December 2017 by U.S. District Judges on the West Coast to stop President Donald Trump’s ban on military service by transgender individuals from going into effect. The vote was 5-4, with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan indicating that they would have denied the applications for stays. Although the stays mean that the Trump Administration’s transgender military ban is no longer blocked by those two injunctions, it is still blocked by an injunction issued by a federal judge in Baltimore.
The Supreme Court issued these two stays “pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is sought.” At the same time, the Supreme Court denied the Solicitor General’s petitions to leapfrog the 9th Circuit and take its appeal of the district court actions for direct review. These petitions were practically rendered moot, at least for now, by the Supreme Court’s granting of the stays. When the Court made its announcement at 9:30 am on January 22, the 9th Circuit had not yet ruled, although a three-judge panel heard oral arguments on the government’s appeal several months ago.
The Supreme Court’s action did not immediately allow the Defense Department to implement the ban, however. That awaits a ruling by U.S. District Judge George L. Russell, III, who is still considering the government’s motion to dissolve the nationwide preliminary injunction issued on November 21, 2017, by now-retired U.S. District Judge Marvin J. Garbis in Baltimore in Stone v. Trump. That case was reassigned to Judge Russell after Judge Garbis retired last June. On November 30, Judge Russell issued his only ruling in the case so far, largely affirming an August 14 ruling by Magistrate Judge A. David Copperthite on disputed discovery issues in the case. However, in his November 30 ruling, Judge Russell rejected the government’s contention that certain “findings of fact” by Judge Copperthite were unreasonable. Among those were Copperthite’s finding that the version of the ban announced by Defense Secretary James Mattis in February 2018, which Trump authorized Mattis to put into effect, was still a ban on military service by transgender people, despite differences from the version described by the White House in an August 2017 memorandum.
On January 4, 2019, the U.S. Court of Appeals for the D.C. Circuit vacated a similar preliminary injunction that was issued on October 31, 2017, by Judge Colleen Kollar-Kotelly of the District Court in Washington, D.C., and directed Judge Kollar-Kotelly to reconsider her conclusion that the version of the ban that President Trump authorized Mattis to implement was essentially the same ban that she had enjoined. The D.C. Circuit panel unanimously ruled, based on the government’s allegations about the differences in the policies, that her conclusion was “clearly erroneous.” The D.C. Circuit’s ruling was, of course, not binding on Judge Russell, because Maryland is under the jurisdiction of the 4th Circuit Court of Appeals, but it may influence Judge Russell’s consideration of that issue while he ponders how to rule on the government’s motion pending in his court.
The government’s position in all four of the pending cases challenging the constitutionality of the ban has been that the “Mattis Policy” announced in February 2018 was significantly different from the version of the ban described in Trump’s August 2017 Memorandum, and thus that the four preliminary injunctions against the August 2017 version should be vacated as moot.
The government now takes the position that the so-called “Mattis Policy,” which bans service by individuals who have been diagnosed with gender dysphoria, is no longer a categorical ban of all transgender service members, as described in Trump’s notorious tweets of July 26, 2017. For one thing, the Mattis Policy carves out an exception, allowing transgender individuals who are already serving to continue doing so despite being diagnosed with gender dysphoria, although those who have not transitioned when the new policy goes into effect will not be allowed to do so and still remain in the service. (This exception, of course, contradicts the government’s argument that individuals diagnosed with gender dysphoria are not fit to serve.) For another thing, the Defense Department contends that because not all individuals who identify as transgender have either been diagnosed with gender dysphoria or desire to make a medical transition, the basis for the disqualification for military service has effectively been shifted by the Mattis Policy from gender identity to gender dysphoria. As such, the government argues, the district courts’ conclusion that the ban discriminates on the basis of transgender status in violation of Equal Protection no longer applies. Instead, the ban is based on a medical condition, as to which the courts should defer to military expertise, because courts have never second-guessed the military’s determination that people with a diagnosed medical condition may be unfit to serve.
The Supreme Court’s action does not grant the government’s request to dissolve the preliminary injunctions that were issued in December 2017 by District Judges Marsha J. Pechman (Seattle) and Jesus Bernal (Riverside, California), and thus should not be interpreted as taking a position on whether those injunctions should have been issued, but merely agrees to the government’s request to stay their effect while the 9th Circuit decides how to rule on the government’s appeal from those district judges’ denial of the government’s motions to dissolve the injunctions. In the meantime, all four district courts are dealing with contentious arguments as the government refuses to comply with the plaintiffs’ discovery demands, making it difficult for the courts to proceed with the cases. These cases are raising significant issues about the extent to which the government should be forced to disclose details of its decision-making process that are crucial to determining whether the policy they are now defending was adopted for constitutionally impermissible reasons.
Attention now focuses on Judge Russell, whose eventual ruling on the government’s motion to dissolve Judge Garbis’s preliminary injunction will decide, at least for the moment, whether the transgender ban goes into effect or remains blocked while the litigation continues. If Judge Russell follows the lead of the other district judges, he will deny the motion and Solicitor General Francisco will likely petition the Supreme Court to grant a stay similar to the ones issued on January 22. The question now is whether Judge Russell finds the D.C. Circuit’s analysis to be persuasive. If he does, the ban may go into effect, even as all four cases challenging the ban continue to be fiercely litigated by the plaintiffs.
As to the stays issued on January 22, the Supreme Court’s Order says that if the government is dissatisfied with the 9th Circuit’s disposition of its appeals and files new Petitions for Supreme Court review, the stays will remain in effect. If the Court ultimately denies such petitions, “this order shall terminate automatically.” If the Court grants those petitions, the stay would remain in effect until the Supreme Court rules on the appeal.Tags: Defense Secretary James Mattis, District Judge George Russell, District Judge Jesus Bernal, District Judge Marsha Pechman, Doe 1 v. Trump, Doe 2 v. Trump, equal protection, gender dysphoria, gender identity, gender identity discrimination, judicial deference to military judgment, Karnoski v. Trump, preliminary injunction against transgender military ban, President Donald Trump, stay of preliminary injunctions, Stockman v. Trump, Stone v. Trump, transgender military ban, U.S. Court of Appeals D.C. Circuit, U.S. District Judge Colleen Kollar-Kotelly, U.S. District Judge Marvin Garbis, United States Supreme Court, US Court of Appeals 9th Circuit