No fewer than three courts have ruled against President Trump’s transgender military ban, but the Trump administration isn’t done fighting potential transgender enlistments, which are set to take place Jan. 1 as the result of the rulings.
On Thursday, the U.S. Justice Department filed a request before the U.S. Fourth Circuit Court of Appeals seeking a stay on a ruling issued by U.S. District Judge Marvin Garbis against the transgender ban. The request is limited to the order requiring the U.S. military to allow qualified transgender people to enlist starting Jan. 1.
“Absent further relief from this court…the military will be forced to implement a significant change to its accession standards before it decides how to resolve this issue,” the request says. “As military leadership has explained, this timetable will place extraordinary burdens on our armed forces and may harm military readiness.”
The Garbis ruling, as well as the two other court decisions against the transgender ban, made Jan. 1 the target date for transgender accessions. That was the date Defense Secretary James Mattis selected in a June 30 memo before Trump announced in July via Twitter he would ban transgender people from the military and followed that up with a directive in August.
The Justice Department proposes several ways the Fourth Circuit could stay Garbis’ ruling. The first option is staying the ruling as it pertains to constraining Mattis’ own ability to extend the delay on transgender military service. Also proposed is scaling back the nationwide scope of the injunction, which could mean staying transgender accessions except the one transgender plaintiff who was a potential enlistee and found to have standing in the case.
Finally, the Justice Department suggests staying accessions in their entirety on the basis the Garbis order “rests on legal errors concerning jurisdiction, the equities, and the merits.”
“Without a stay, the military will, at the risk of harming its readiness posture, have to rush to provide the requisite training to the tens of thousands of service members
across the country responsible for implementing accession standards,” the brief says.
Notably, the request doesn’t seek a stay on parts of the Garbis order that barred the U.S. military from kicking out openly transgender people currently in service or refusing payments for gender reassignment surgeries. The request, however, adds the U.S. government “may seek a stay of these aspects of the injunction at a later date after a final policy determination.”
The Justice Department had already appealed the Garbis decision to the Fourth Circuit after the judge ruled against Trump’s ban as result of the litigation, which was filed by the American Civil Liberties Union. The stay request would halt the portion of the order pertaining to enlistments as the litigation moves forward.
The Trump administration is also seeking a stay on transgender accessions from the U.S. Circuit Court of Appeals for D.C. in response to an order from U.S. District Judge Colleen Kollar-Kotelly. The court has ordered the National Center for Lesbian Rights and GLBTQ Advocates & Defenders, which filed the lawsuit, to respond by the end of Friday.
Another judge in Washington State, U.S. District Judge Marsha Pechman, also ruled against the transgender ban. The Justice Department has yet to take action in response to this decision.
A fourth lawsuit challenging the transgender ban filed by Equality California is pending before a district court in that state. The court held oral arguments earlier this week, but has yet to render a decision.
Jon Davidson, former legal director for Lambda Legal, said the Fourth Circuit only has authority to stay the trial court order within its jurisdiction, so even if a stay were granted, transgender accessions would begin as a result of other court orders.
“A court of appeals stay would only stay the preliminary injunction granted in that circuit,” Davidson said. “It would therefore take grants of stay motions by the D.C., Fourth, and Ninth Circuits to stay all of the current preliminary injunctions against the trans military ban.”
Regardless of the decision of the appellate courts on a stay, the losing party can appeal to the U.S. Supreme Court. If a stay is denied, for example, the Justice Department can seek relief from the Supreme Court. If a stay is granted, transgender rights advocate can seek a reversal.
A Supreme Court stay in one case would “only indirectly” stay the orders in the other cases, Davidson said, but would nonetheless likely result in a global stay.
“Judges hearing stay motions in those cases would likely grant a stay in them if the Supreme Court stayed an injunction in another case because, if they didn’t, the Supreme Court likely would issue a stay in their cases as well, if brought up to them,” Davidson said.
Davidson added, “That did not happen in all the marriage cases, however, so it’s not a sure thing.”