The Trump administration should be allowed to implement its ban on individuals suffering from gender dysphoria serving in the military, a three-judge panel of the D.C. Circuit Court of Appeals ruled Friday, though the ruling does not vacate every injunction against the policy.
The unsigned opinion ruled that District Court Judge Colleen Kollar-Kotelly was wrong to have blocked the ban, Reuters reports. But it has no power to vacate injunctions imposed by other districts, meaning the administration is still waiting for the U.S. Supreme Court to settle the matter.
The policy disqualifies “transgender persons with a history or diagnosis of gender dysphoria,” specifically those who “may require substantial medical treatment, including medications and surgery,” except in “certain limited circumstances.” It was developed after “extensive study by senior uniformed and civilian leaders, including combat veterans,” according to the White House and as detailed in a memo from former Defense Secretary James Mattis.
The ban has been challenged in court since before it was even finalized, and in July the Ninth Circuit Court of Appeals rejected the administration’s request to lift another temporary injunction against enforcing it.
In November, the administration petitioned the Supreme Court to hear the case instead of waiting for it to work its way through lower courts whose outcomes would almost certainly be appealed anyway. The court can fast-track cases that haven’t yet reached it if they’re shown to be “of such an imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this court.”
One of the factors behind the D.C. Circuit panel’s decision was that Kollar-Kotelly failed to recognize changes in the finalized policy from an earlier version she had also blocked. “It was clear error to say there was no significant change,” they ruled, whereas the current version “appears to permit some transgender individuals to serve in the military consistent with established military mental health, physical health, and sex-based standards.”
Pro-LGBT activists argue the policy constitutes discrimination for no valid military purpose, but several military veterans and experts disagree.
The Heritage Foundation defense expert and retired Lieutenant General Tom Spoehrand former Army drill instructor John Burk, endorse the Mattis memo’s conclusion that gender dysphoria in the ranks harms “healthcare costs, readiness, and unit cohesion,” and therefore presents “considerable risk to military effectiveness and lethality.”
Center for Military Readiness leader Elaine Donnelly argues that the policy’s foes are attempting to stigmatize something that was a consensus view before LGBT activists took yet another left turn. “In June 2017, for example, AP [Associated Press] reported that three of four military service leaders wanted one or two years more time before implementing Obama-era transgender mandates,” she wrote.
The Supreme Court is expected to decide on January 11 whether to take the case. If at least four justices agree to do so, the policy’s fate would likely be revealed sometime in the summer of 2019.