Last Court Barrier to Military Transgender Ban Likely to Fall

In this March 27, 2018, file photo, plaintiffs Cathrine Schmid, second left, and Conner Callahan, second right, listens with supporters during a news conference in front of a federal courthouse following a hearing in Seattle. (AP Photo/Elaine Thompson)
In this March 27, 2018, file photo, plaintiffs Cathrine Schmid, second left, and Conner Callahan, second right, listens with supporters during a news conference in front of a federal courthouse following a hearing in Seattle. (AP Photo/Elaine Thompson)

The Justice Department notified a Maryland court Wednesday of its intention to file a motion striking down what may be the last barrier to new Pentagon rules that could lead to the discharge of transgender troops.

Advocacy groups said they expected the motion to succeed, based on a Supreme Court ruling handed down Tuesday. The ruling lifted court injunctions against a policy approved by then-Defense Secretary Jim Mattis that followed President Donald Trump's proposed ban on transgender individuals serving in the military.

In a notice of intent, Assistant Attorney General Joseph Hunt told U.S. District Court Judge George Russell in Maryland that he had no choice but to follow the Supreme Court's ruling and lift his own injunction.

The other injunctions that had blocked the Defense Department's policy "are indistinguishable from the preliminary injunction in this case, and the Supreme Court's order is binding precedent on the application of the stay factors to the injunction at issue here," Hunt said, according to the court filing.

Although the last barrier to the ban is likely to fall, it is still unclear whether or when the Defense Department might proceed with the policy put forward by Mattis, who largely delegated the authority to draw it up to Patrick Shanahan, then-deputy defense secretary and now acting secretary of defense.

In a statement Tuesday, Air Force Lt. Col. Carla Gleason, a Pentagon spokeswoman, said, "We treat all transgender persons with respect and dignity."

The Defense Department policy "is NOT a ban on service by transgender persons," Gleason said, but "it is critical that DoD be permitted to implement personnel policies that it determines are necessary to ensure the most lethal and combat effective fighting force in the world."

On Wednesday, Gleason said the Pentagon was still barred from putting the policy into effect by the Maryland injunction. She said the Justice Department "is seeking relief from this remaining injunction in light of the Supreme Court's action, but at present it remains in place."

Under the Mattis policy, transgender individuals would be barred from enlisting, but openly transgender individuals now serving in the military would be allowed to remain.

However, transgender individuals currently serving who decide to come out and transition could face discharge.

Advocates for LGBT (Lesbian Gay Transgender Bisexual) rights said the military would have the authority to implement the Mattis policy once there is a ruling on the Maryland injunction, but the Pentagon could also decide not to follow through.

The Supreme Court ruling "allows but does not require the military to reinstate the ban for the duration of ongoing litigation over the policy," Aaron Belkin, director of the Palm Center advocacy group said in a statement Tuesday.

In a phone interview Wednesday, Belkin said the military "can't discharge anybody until they implement the formal policy." Even then, "the issue would be ripe" for more lawsuits by transgender individuals who might be targeted for discharge, he said.

Eventually, "transgender troops will serve openly in the military," Belkin said. "The arc of history is clear."

He described the current court battles as a "zigzag in policy while Trump remains in office."

-- Patricia Kime contributed to this report.

-- Richard Sisk can be reached at richard.sisk@military.com.

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