Extension of Defense Department Ban on Transgender Military Service Still On Hold Following Court Decision

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By on August 7, 2018 in Court Cases with 0 Comments

Close up of a military service member's uniform pictured over an American flag in the background

The latest decision on this matter is Jane Doe 2 v Trump (U.S.D.C.D.C. No. 17-1597 (CKK), 8/6/18).

Briefly, the Department of Defense (DOD) had announced that effective January 1, 2018 it was going to allow transgendered individuals to serve and would prohibit discharge of service members based on their gender identities. That new rule was put on hold when the President issued a formal Presidential Memorandum on August 25, 2017 reversing the new DOD policies from taking effect and ordering up a new plan.

The court’s decision indicates, “Plaintiffs are current and aspiring transgender service members…All fear that the directives of the 2017 Presidential Memorandum will have devastating impacts on their careers and their families. Accordingly they filed this lawsuit challenging those directives…” and sought an injunction. (p. 3)

In October 2017, the district court had issued a preliminary injunction, finding that Plaintiffs had standing and were likely to succeed on their claim that the directive violated guarantees of due process. The DOD was unsuccessful in convincing the district court and then the appeals court to stay the injunction. As the appeals court found, “[The U.S.] had not demonstrated that they had a strong likelihood of success on appeal, that they would be irreparably harmed absent a stay, or that the stay would not harm the other parties to the proceeding.” (p.4)

The DOD then voluntarily dismissed its appeal of the preliminary injunction and began permitting openly transgender individuals to serve in the military. However, the case before the district court has proceeded. Meanwhile, the Secretary of Defense submitted a new plan to the President, as ordered. While not a blanket ban, it “effectively implements such a ban by targeting proxies of transgender status…and by requiring all service members to serve ‘in their biological sex.’” (pp. 5-6)

Details of the policy are spelled out in the court’s opinion; however the court summarizes as follows: “[I]ndividuals who require or have undergone gender transition are absolutely disqualified from military service; individuals with a history or diagnosis of gender dysphoria are largely disqualified from military service; and [to the extent] they may serve, but only ‘in their biological sex.’” (p. 6)

Meanwhile the President revoked his earlier Presidential Memorandum and clearly left the matter in the hands of the military. There followed a flurry of motions in the district court, leading to this latest decision.

In short, the case lives on. The government’s motion to have the injunction as well as the entire case thrown out was denied. The court makes clear that it has not reached a final ruling on the merits, however.

Jane Doe 2 v. Donald Trump No. 17-1597

© 2018 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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