December 22, 2017 at 8:12 pm EST | by Chris Johnson
Second appeals court rejects delay in trans military enlistments

Bilal Ahmed

The D.C. Circuit has rebuffed a request to delay trans military enlistments.

In the second blow to President Trump’s transgender military ban from a federal appeals court, the U.S. Circuit Court of Appeals for the D.C. Circuit has rejected a request from the Trump administration to extend the delay on transgender military enlistments beyond Jan 1.

The three-judge panel on Friday denied the U.S. Justice Department request for a stay based on the several factors, including that the U.S. government is unlikely to succeed its appeals of court orders against President Trump’s transgender military ban.

The decision also takes note transgender people “are already serving openly in the military” and credits their service to the country.

“It must be remembered that all plaintiffs seek during this litigation is to serve their nation with honor and dignity, volunteering to face extreme hardships, to endure lengthy deployments and separation from family and friends, and to willingly make the ultimate sacrifice of their lives if necessary to protect the nation, the people of the United States, and the Constitution against all who would attack them,” the decision says.

The three-judge panel who wrote the order consists of U.S. Circuit Judge Judith Ann Wilson Rogers, an Clinton appointee; U.S. Circuit Judge David Tatel, another Clinton appointee; and U.S. Circuit Judge Patricia Ann Millett, an Obama appointee.

The Justice Department had sought a stay pending appeal on the trial court order by U.S. District Judge Colleen Kollar-Kotelly against President Trump’s transgender ban. Although Kollar-Kotelly ruled against the entirety of Trump’s ban, the Justice Department only sought a stay on her clarification her order requires enlistments of qualified openly transgender people to begin Jan. 1.

That’s the target date Defense Secretary James Mattis identified in a June 30 memo delaying an Obama-era change enabling transgender military enlistments for another six months.

Kollar-Kotelly and the D.C. Circuit issued their decisions as a result of litigation filed by the National Center for Lesbian Rights and GLBTQ Advocates & Defenders.

Shannon Minter, legal director for the National Center for Lesbian Rights, said his organization is “grateful” the D.C. Circuit found “no basis whatsoever for delaying the enlistment of qualified transgender applicants.”

“Since President Trump’s destructive order to ban transgender people from military service, military leaders and experts are speaking out to support transgender troops,” Minter said. “Experience has shown that allowing qualified transgender candidates to serve strengthens our military and our country. We cannot allow this administration to demean dedicated service members and weaken our military based on false stereotypes and irrational bias.”

The Pentagon has stated the U.S. military is prepared to accept transgender recruits starting Jan. 1 as result of court orders against the ban. Opponents of the transgender ban submitted a Dec. 8 memo from Mattis outlining preparation for the change in legal briefs against the stay request on transgender enlistments.

Jennifer Levi, GLAD’s Transgender Rights Project Director, said in a statement “there is no justification for any more delay” on transgender enlistments.

“The military is ready, the country is ready, and the courts have weighed in,” Levi said. “Qualified transgender people are ready to sign up and risk their lives in defense of the nation. Our country needs them. It’s time to let them serve.”

The U.S. Fourth Circuit Court of Appeals already rebuffed a stay request from the Justice Department on transgender military enlistments earlier this week as a result of different order from U.S. District Judge Marvin Garbis.

Lauren Ehrsam, a Justice Department spokesperson, had the same comment on the D.C. Circuit decision that she had on the Fourth Circuit denial of a stay.

“We disagree with the court’s ruling and are currently evaluating the next steps,” Ehrsam said.

The Justice Department has the option of appealing the denial of stays in both the D.C. and Fourth Circuits to U.S. Chief Justice John Roberts, who has jurisdiction over stay requests in both those circuits. Roberts can decide the matter himself or refer it to the entire court.

Another judge in Washington State, U.S. District Judge Marsha Pechman, also ruled against Trump’s transgender military. The Justice Department has requested a clarification and partial stay on that decision and could appeal the outcome to the U.S. Ninth Circuit Court of Appeals.

Another lawsuit filed by Equality California also challenges Trump’s transgender military ban. The trial court has yet to render a decision in that case.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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