In a development that could complicate the implementation of the transgender military ban, a federal judge in D.C. ruled the Trump administration is “incorrect” in determining no legal impediment remains in place barring enforcement of the policy.
U.S. District Judge Colleen Kollar-Kotelly, a Clinton appointee, issued a notice Tuesday asserting her injunction remains in place for the time being despite an order from the D.C. Circuit Court of Appeals vacating the decision.
“Lacking a mandate, the D.C. Circuit’s judgment is not final, and this court’s preliminary injunction remains in place,” Kollar-Kotelly writes.
According to Kollar-Kotelly, the earlier time for when the D.C. Circuit would issued its mandate — effectively abrogating her injunction — is March 29.
Kollar-Kotelly’s order was one of four injunctions in place against the Trump administration. The U.S. Supreme Court, however, stayed two of the injunctions issued in the Ninth Circuit, and a federal judge in Maryland stayed his injunction in the aftermath of the Supreme Court.
Despite those actions from other courts, Kollar-Kotelly insists her order against the transgender military ban remains in effect, suggesting the Trump administration cannot move forward with the policy.
“The fact that the three other nationwide preliminary injunctions which had been in place are now stayed has no impact on the continued effectiveness of this court’s preliminary injunction,” Kollar-Kotelly said.
Kollar-Kotelly issued the notice in the case of Doe v. Trump, a case against the ban filed on behalf of transgender plaintiffs by the National Center for Lesbian Rights and GLBTQ Advocates & Defenders. The transgender legal groups requested the order from Kollar-Kotelly after the Trump administration unveiled plans to begin the anti-trans policy on April 12.
In her conclusion, Kollar-Kotelly writes “as a practical matter, that because the three other nationwide preliminary injunctions are now stayed,” the Trump administration is “permitted by those cases to implement” the transgender policy, but adds “they are not permitted to do so in this case until the mandate is issued.”
Jennifer Levi, director for GLAD’s transgender rights project, told the Washington Blade the noticed bars the Trump administration from enforcing the transgender ban.
“The district court judge was crystal clear that the government cannot depart from the status quo,” Levi said. “The injunction in Doe v. Trump against implementing the transgender military ban remains in place. That means that the government may not implement any change in the current policy which allows transgender people to serve and enlist.”
Lt. Col. Carla Gleason, a Pentagon spokesperson, said the Defense Department is “consulting with the Department of Justice on next step,” and referred additional questions to the Justice Department, which didn’t immediately respond to a request to comment.
Even with the notice from the Kollar-Kotelly, it will likely only be a matter of time before the administration will move forward with the transgender policy. The D.C. Circuit is set to issue its mandate on March 29 at the earlies, which would give transgender plaintiffs time to seek “en banc” review before the full court. It’s hard to see how a different conclusion will be reached in the aftermath of guidance from the Supreme Court allowing implementation of the ban.
UPDATE: On Wednesday, the Justice Department filed a 10-page stay request with Kollar-Kotelly, calling on her to lift her injunction until the D.C. Circuit issues its mandate. A Justice Department official also told the Washington Blade it will file an emergency motion with the D.C. Circuit later on Wednesday.