Justice Dept. Vows Appeal After Judge Rules Transgender People Free to Enlist in U.S. Military

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The Pentagon said it will begin processing transgender applicants to the military on January 1 after a federal judge declined on Monday to put the deadline on hold.

Transgender Retired U.S. Army Colonel Sheri Swokowski prepares her uniform on July 1, 2016, at her home in DeForest, Wisconsin. (Credit: Derek Henkle/AFP/Getty Images)
Transgender Retired U.S. Army Colonel Sheri Swokowski prepares her uniform on July 1, 2016, at her home in DeForest, Wisconsin. (Credit: Derek Henkle/AFP/Getty Images)

Transgender service members are challenging President Donald Trump’s memorandum directing the secretary of defense to bar transgender Americans from military service. The challengers have so far been successful in blocking the President’s policy from going into effect while the lawsuit plays out in court. Their latest victory came Monday, when Judge Colleen Kollar-Kotelly ruled that the government would not be “irreparably injured” if the January 1 deadline remained in place as the lawsuit continues.

After the ruling, however, the Justice Department appealed the judge’s ruling to a DC-based federal appeals court.

“The government seeks a stay pending appeal of the portion of the injunction concerning accessions,” government lawyers said in their brief filed late Monday.

Justice Department spokeswoman Lauren Ehrsam said in a written statement: “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.”

Last week, the Pentagon said it had established a panel of experts to propose recommendations on the issue of accepting transgender recruits following a series of rulings in federal court regarding the administration’s policy to prohibit transgender recruits.

“The Deputy Secretary of Defense and Vice Chairman of the Joint Chiefs of Staff, supported by a panel of experts, will propose consideration recommendations supported by appropriate evidence and information for the accession of transgender persons into the military,” US Army Maj. Dave Eastburn, a Pentagon spokesman, said in a written statement last week.

So far, two federal judges have blocked key provisions of Trump’s prohibition on transgender individuals serving in the military, which was announced in August.

Last month, Marvin Garbis in Maryland wrote in a 53-page ruling that currently serving transgender service members were “already suffering harmful consequences” and prohibited the administration “from blocking those challenging the ban from completing their medically necessary surgeries.”

Kollar-Kotelly had blocked portions of Trump’s directive in October.

A sworn statement from Lernes J. Hebert, the acting deputy assistant secretary of defense for military personnel policy, said ordering the policy to go into effect January 1 “will impose extraordinary burdens on the department.”

He argued in part that if the department were compelled to accept transgender recruits “applicants may not receive the appropriate medical and administrative accession screening necessary for someone with a complex medical condition. As a result, an applicant may be accessed for military service who is not physically or psychologically equipped to engage in combat/operational service.”

In his statement last week, Eastburn said the panel, which would operate per the recent court rulings, will issue findings based on “multiple considerations including military effectiveness and lethality, budgetary constraints, and applicable law.”

Shortly after Trump’s directive in August, Defense Secretary James Mattis said he would work with a panel of experts to recommend how the military should put the administration’s transgender guidance into effect.

Once that panel concludes, Mattis will provide his advice to Trump on how to implement his policy direction. That new policy is expected to be announced by March.

CORRECTION: This article has been updated to correctly identify Justice Department spokeswoman Lauren Ehrsam.

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