A federal judge in Maryland lifted on Thursday his order against President Trump’s transgender military ban, bringing the administration one step closer toward enforcing the policy.
In a six-page order, U.S. District Judge George Russell III, an Obama appointee, rules he must lift his order “because the court is bound by the Supreme Court’s decision” that essentially green lighted Trump’s policy.
Russell was one of four district judges to have issued an order against the transgender military ban, which Trump announced in a series of tweets pledging to bar transgender people from the armed forces “in any capacity.”
But in January, the Supreme Court lifted two of these orders issued by judges in Ninth Circuit, essentially allowing the military to enforce Trump’s ban as litigation against it proceeds through the courts.
Weeks earlier, the U.S. Court of Appeals for the D.C. Circuit had sided with Trump on the transgender military ban, issuing an order against the injunction issued by U.S. District Judge Colleen Kollar-Kotelly.
Although courts have now lifted each of the initial injunctions, transgender advocates say the order from Kollar-Kotelly remains in effect, keeping openly transgender service in place for the time being.
The U.S. Circuit of Appeals for the D.C. Circuit has yet to issue the mandate on its decision, which gives the legal team supporting transgender plaintiffs the chance to seek “en banc” review before the full court. Transgender advocates say the absence of the mandate keeps the Kollar-Kotelly order intact for now.
But with the Supreme Court lifting the orders in two other cases, it’s hard to see how the D.C. Circuit would change its mind and take up “en banc” review of its case. After all, the Supreme Court is the superior court, and lower courts are bound by its order to allow enforcement of the ban as litigation proceeds.
The American Civil Liberties Union, which filed the case against the transgender ban in Maryland, sought to convince Russell after the Supreme Court to at least keep the injunction for each of the five plaintiffs in the case, known as Stone v. Trump.
But Russell says in his order the Supreme Court made no such exceptions in its decision on the Ninth Circuits orders, which compels him to deny the request.
“The Supreme Court implicitly rejected the option to narrowly tailor its stays so that the preliminary injunctions were still in effect as to the individual plaintiffs,” Russell writes. “Further, the Stockman and Karnoski plaintiffs include transgender individuals who intend to join the military…like certain plaintiffs in this case. The court, therefore, cannot materially distinguish plaintiffs in this case from those for whom the Supreme Court rejected a narrow tailoring of the stays.”
Joshua Block, senior staff attorney for the ACLU said in a statement “while not surprising, this decision is deeply disappointing for our clients and for transgender service members across the nation.”
“Each and every claim made by President Trump to justify this ban can be easily debunked by the conclusions drawn from the Department of Defense’s own review process,” Block said. “We will continue to fight against this discriminatory policy and the Trump administration’s attacks on transgender people. Our clients are brave men and women who should be able to continue serving their country ably and honorably without being discriminated against by their own commander in chief.”
Jessica Maxwell, a Pentagon spokesperson, said the military will continue to allow openly transgender service for the time being, but that should change soon.
“The department is pleased with the district court’s decision to stay the final injunction against the department’s proposed policy,” Maxwell said. “The 2016 policy will remain in effect until the department issues further guidance, which will be forthcoming in the near future.