Justice Department lawyers have told a federal judge that they will be defending a new policy regarding transgender military service that will be "disclosed" by the Trump administration on Feb. 21, the federal judge wrote in an order this week.
No further information about what that policy will be was included in the order, and federal officials declined to provide any further information about the substance of the forthcoming policy.
There are currently several cases challenging Trump's policy that called for an end to open transgender military service. US District Judge Marvin Garbis, who is overseeing one of those cases, noted the new policy development in the course of a brief ruling on when the government must turn over certain information to those challenging the policy.
The Feb. 21 date referenced is likely referring to a date set by President Trump's August memorandum that set the policy. Under the memorandum, the defense secretary is supposed to submit an implementation plan for the three portions of the memo — recruitment rules, retention, and health care — to Trump by Feb. 21.
All three of those provisions have been put on hold by various federal courts — including by Garbis in a challenge backed by the ACLU — and the administration stopped fighting a Jan. 1 deadline for accepting new military recruits who are transgender days before the deadline went into effect.
This week, Justice Department lawyers argued in one of those challenges that the defendants could not comply with obligations to turn over the required information "because they will not be defending the policy now at issue but will be defending the policy to be disclosed on February 21, 2018," Garbis wrote in a Tuesday order, summarizing what the Justice Department's lawyers had said in a telephone conference from earlier in the day. A lawyer for the challengers who was on the call confirmed the accuracy of the judge's account.
Asked about the statement that a new "policy" would be "disclosed on February 21, 2018," Maj. David Eastburn, a Pentagon spokesperson, said that the Pentagon only would be preparing "recommendations," but that a final decision on the "new policy" would come from the White House.
"The panel that was established by the Secretary of Defense is presenting their recommendations to him. At the end of this month, The Secretary will make his recommendations to the President, who will then make a decision and establish the new policy on transgender [service] in the military," Eastburn told BuzzFeed News.
Regarding its defense of that policy, noted by Garbis, Justice Department spokesperson Kerri Kupec told BuzzFeed News, "We will continue to defend the President's and Secretary of Defense’s lawful authority in district court."
Under Garbis's order, the Justice Department is to fulfill their evidentiary obligations in the case "shortly after February 21, 2018."
The White House did not respond to a request for comment, and the Defense and Justice departments did not provide any additional clarification on the plans or timeline for making them public.
This story has been updated with comment from the Justice Department.
Chris Geidner is a Supreme Court correspondent for BuzzFeed News and is based in Washington, DC.
Contact Chris Geidner at firstname.lastname@example.org.
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