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Trump Administration Asks Appeals Court To Halt Order Allowing Transgender Military Recruits

"[T]he Court is not persuaded that Defendants will be irreparably injured by allowing the accession of transgender individuals into the military beginning on January 1, 2018," a federal judge concluded. [UPDATE: On Monday evening, the Justice Department asked a federal appeals court to issue a stay of the lower court's ruling.]

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The military must stick to the Jan. 1, 2018, deadline previously set by the Pentagon for allowing transgender military recruits, a federal judge ruled on Monday.

"[H]aving carefully considered all of the evidence before it, the Court is not persuaded that Defendants will be irreparably injured by allowing the accession of transgender individuals into the military beginning on January 1, 2018," US District Judge Colleen Kollar-Kotelly wrote.

The Justice Department appealed the ruling on Monday evening, asking the US Court of Appeals for the DC Circuit to issue a stay of the district court's ruling while the case is appealed — and in the meantime as well, until the appeals court can rule on the stay request.

In Kollar-Kotelly's Monday ruling, she denied the Trump administration's request to put on hold that part of the court's earlier injunction against President Trump's transgender military ban — a policy that came out of his earlier, out-of-the-blue tweets on the topic.

In a tersely worded order, the judge went so far as to question the the "emergency" nature of the situation as presented in the Justice Department's legal filings to the court.

"[T]he Court notes that Defendants’ portrayal of their situation as an emergency is belied by their litigation tactics," Kollar-Kotelly wrote, noting that the federal government waited three weeks to appeal the injunction and another two weeks to file the request before the trial court for a partial stay of the injunction in order to delay the Jan. 1 deadline — which had been set by Defense Sec. James Mattis this June.

"If complying with the military’s previously established January 1, 2018 deadline
to begin accession was as unmanageable as Defendants now suggest, one would have expected Defendants to act with more alacrity," she wrote.

In a statement, the Defense Department acknowledged that court orders were forcing it to begin the new policy come Jan. 1 — but also noted that attempts to halt the court orders would continue.

"As required by recent federal district court orders, the Department of Defense recently announced it will begin processing transgender applicants for military service on January 1, 2018. This policy will be implemented while the Department of Justice appeals those court orders," per a Pentagon statement. "DoD and the Department of Justice are actively pursuing relief from those court orders in order to allow an ongoing policy review scheduled to be completed before the end of March."

Justice Department spokesperson Lauren Ehrsam told BuzzFeed News, “We disagree with the Court's ruling and are seeking to stay the Defense Department's obligations under that ruling as we evaluate next steps. Plaintiffs’ lawsuit challenging military service requirements is premature for many reasons, including that the Defense Department is actively reviewing such service requirements, as the President ordered, and because none of the Plaintiffs have established that they will be impacted by current policies on military service."

In addition to the ruling out of DC, a federal judge in Maryland issued an injunction against the ban and — on Monday afternoon in Washington state — a third district court judge halted enforcement of the ban.

The Pentagon was blindsided by the president’s tweets in July announcing that transgender troops would be blocked from serving in the US military. Just a year earlier, after commissioning an exhaustive study, the Defense Department under former president Barack Obama had lifted its ban on transgender soldiers serving openly. In the aftermath of Trump’s tweets, neither the Pentagon nor the White House could answer what the sudden announcement would mean for the thousands of transgender people already serving in the military.

There are between 1,320 and 6,630 transgender individuals currently serving on active duty, about 0.05 percent of the total active force, according to a Rand Corporation analysis. Other studies say that number may be as high as 15,000.

In the months leading up to Trump’s announcement, lawmakers had debated funding surgeries for transgender troops, and the issue of when and how to allow the recruitment of transgender troops had been discussed by the military. But the unexpected blanket ban on all transgender troops led to a flurry of lawsuits filed against Trump, Mattis, and other Pentagon officials.

Former secretaries of the US Army, Navy, and Air Force also threw their support behind transgender troops, suing Trump for reversing the Pentagon policy allowing them to serve openly in the military.

“President Trump’s stated rationales for reversing the policy and banning military service by transgender people make no sense,” Ray Mabus, the longest serving Navy secretary since World War I and a former governor of Mississippi, said in a statement supporting one of the lawsuits in August. “They have no basis in fact and are refuted by the comprehensive analysis of relevant data and information that was carefully, thoroughly, and deliberately conducted."

Chris Geidner is the legal editor for BuzzFeed News and is based in Washington, DC. In 2014, Geidner won the National Lesbian & Gay Journalists Association award for journalist of the year.

Contact Chris Geidner at chris.geidner@buzzfeed.com.

Vera Bergengruen is a Pentagon reporter for BuzzFeed News and is based in Washington, DC.

Contact Vera Bergengruen at vera.bergengruen@buzzfeed.com.

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