Federal Appeals Court Reinstates Longstanding Policy on Transgender Troops

Transgender US Army Reseve Captain Sage Fox speaks during a conference entitled "Perspectives on Transgender Military Service from Around the Globe" organized by the American Civil Liberties Union (ACLU) and the Palm Center in Washington on October 20, 2014. Transgender military personnel from 18 countries who allow them to serve …

WASHINGTON, DC – Federal appellate judges in D.C. dissolved a trial court injunction on Friday that had been blocking President Donald Trump’s decision to continue the decades-long policy banning transgender individuals from military service, but the policy continues to be blocked by other courts as the Supreme Court prepares to vote on reviewing the matter.

For many decades, the Department of Defense has banned from military service persons who have any of a long list of mental disorders. TheDiagnostic and Statistical Manual of Mental Disorders (DSM) has always listed gender dysphoria as a mental disorder, though the clinical name for the dysphoria has changed over time.

As one Supreme Court filing in these cases explains, “The vast majority of Americans from ages 17 to 24 – that is, 71% – are ineligible to join the military without a waiver for mental, medical, or behavioral reasons.” Transgender individuals are among that who are ineligible.

President Barack Obama announced toward the end of his presidency that he would lift the ban, effective after he left office, but President Trump announced on July 26, 2017, that he was reversing Obama’s decision, allowing the longstanding policy to continue.

Three legal challenges are progressing in federal court against President Trump’s decision, even though all it did was maintain the status quo. Plaintiffs chose their courts well, and liberal judges from California, New York, and D.C. each issued injunctions blocking the longstanding policy and ordering the military to start allowing transgender servicemembers.

Each of those districts are in left-leaning circuits for their courts of appeals. Anticipating potential losses, the Department of Justice took the rare step of petitioning the Supreme Court to grant certiorari (i.e., taken the case for review) before the appellate courts issue final decisions on the merits of the case.

However, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit vacated the D.C. district court’s decision, dissolving the injunction.

The ban currently remains in place, however, because each of the other two district courts’ injunctions remain in place for now. That continues the disturbing current trend of individual trial judges purporting to assert nationwide jurisdiction, a trend that the Supreme Court may address in the near future.

The case is Doe 2 v. Trump, No. 18-35347 in the U.S. Court of Appeals for the District of Columbia Circuit.

The current petition for certiorari before judgment is No. 18-677 at the Supreme Court of the United States, which may now be replaced with a standard cert petition because an appellate judgment has been issued in the case.

The petitions for certiorari before judgment in the other two cases are Trump v. Karnoski, No. 18-676, and Trump v. Stockman, No. 18-678, in the Supreme Court of the United States.

Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.


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