After Court Ruling, Military Will Accept Openly Transgender Recruits As Of Jan. 1

By Colin Dwyer

Published December 11, 2017 at 4:49 PM CST

Transgender U.S. Army Capt. Jennifer Sims lifts her uniform during a July interview with The Associated Press in Beratzhausen near Regensburg, Germany.

Updated at 10:30 p.m. ET

Following a federal court ruling, the Pentagon has confirmed it will allow openly transgender individuals to enlist in the military beginning Jan. 1. The Trump administration had resisted that deadline in court, seeking to have its ban on new transgender troops reinstated — but on Monday, Judge Colleen Kollar-Kotelly upheld an earlier decision to temporarily block President Trump's ban.

That ban has been under fire since it was issued in a presidential memorandum in August. It quickly drew several lawsuits, and two federal judges — including Kollar-Kotelly in October — moved to put it on hold while those cases were decided in the courts. As NPR's Camila Domonoske explained then, Kollar-Kotelly found "that trans members of the military have a strong case that the president's ban would violate their Fifth Amendment rights."

The administration appealed that ruling, seeking to implement its ban during the pending court cases, only to see the appeal denied by Kollar-Kotelly on Monday.

Later on Monday, a third judge issued a ruling blocking the president's ban on transgender recruits. U.S. District Court Judge Marsha Pechman ruled in Seattle in the case of a soldier based in Washington state and two men who hope to enlist.

In her decision, she noted that she was "not convinced by the vague claims" that the Jan. 1 deadline needed to be delayed. At the same time, she reiterated her October argument that trans service members have a strong case and questioned the administration's "portrayal of their situation as an emergency," considering more than three weeks passed before it filed the appeal.

"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 added in the final line of her decision.

The Department of Defense has announced it will comply with the order to allow transgender recruits — but in a statement Monday, the department made clear that it is doing so reluctantly.

"This policy will be implemented while the Department of Justice appeals those court orders," a Pentagon spokesperson said in the statement, adding: "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."

White House press secretary Sarah Huckabee Sanders said the Justice Department is also "reviewing legal options" to ensure that the president's directive can be implemented.

Kollar-Kotelly's ruling marks a new step in a twisting legal drama that promises to continue for some time — and traces its origins to an Obama-era policy announced 18 months ago.

In June 2016, then-Defense Secretary Ash Carter announced the Pentagon would be lifting a long-running ban on openly transgender service members. As part of that announcement, a one-year deadline was set for the military to begin admitting new transgender troops. But before that deadline could take effect earlier this year, it was quietly extended by six months — to Jan. 1, 2018.

Then, this past July, Trump tweeted that "the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military." He later issued an official presidential memo, slightly dialing back the severity suggested in his tweet: That order prohibited the enlistment of new troops who are openly transgender, halted the use of federal funds for sex reassignment surgeries, and left it to his defense secretary to decide whether to expel trans troops who are currently serving.

Secretary Jim Mattis announced just days later that current trans troops could remain in the military "in the interim."

Now, under the injunction that was upheld Monday, new trans troops can enlist, as well — at least temporarily as long as the lawsuits against Trump's ban are still pending, and perhaps permanently, if those lawsuits are successful.

"Today's announcements — both by the court and the Pentagon — signal that there is an awareness that it's not right to make military policy by tweets," Aaron Belkin, director of the Palm Center, which works on LGBT issues in the military, tells NPR's Greg Myre. "And when there's a deliberate process of study, then that process should be respected and implemented."