The Justice Department announced that it would not be asking the Supreme Court to delay the scheduled start of recruitment of openly transgender people, meaning that open recruitment will start on January 1.
The Trump Administration has been trying to prevent the military from allowing openly transgender people to enlist, but two federal appeals courts denied the request, saying that it would put a substantial burden on transgender recruits that isn’t justified by any clear policy interest.
“The Department of Defense has announced that it will be releasing an independent study of these issues in the coming weeks. So rather than litigate this interim appeal before that occurs, the administration has decided to wait for Department of Defense’s study and will continue to defend the President’s and Secretary of Defense’s lawful authority in district court in the meantime,” a Justice Department spokesperson said in a statement.
In 2016, the Obama Administration lifted the ban on transgender people serving openly in the military. Servicemembers who were already in the military were free to live authentically, but the Pentagon was given one year to come up with a plan to open recruitment up to transgender people. After the four military service chiefs jointly asked for more time, the date for open recruitment was moved to January 1, 2018.
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Since Donald Trump tweeted his intention to purge the military of transgender people this past summer, four federal district court judges found that Trump’s trans military ban was unconstitutional. The Justice Department asked two appeals courts to delay open recruitment because they know it’s harder to take away rights that have already been granted than to continue to deny them.
The lack of paper trail – usually a president who wants to make a major policy change through the bureaucracy will hold hearings with stakeholders and gather the opinions of experts, but Trump just tweeted when the idea popped into his head – meant that the Trump Administration’s lawyers couldn’t show that the White House even had a believable excuse to ban trans people from the military, much less a legitimate policy interest in doing so.
“The decision shows that the government recognizes that its chances of reversing the district court were slim. We totally agree,” OutServe-SLDN Legal Director Peter Perkowski said. “There never was any rational justification for the exclusion of transgender people from serving openly, and one hopes the Administration’s move this evening indicate it has taken the hint and will stop pursing a policy so clearly damaging to this nation’s military readiness.”
