The Trump administration suffered another defeat in court on Friday as the latest attempt to implement the White House’s proposed transgender military service ban was denied by a federal judge in Washington State.
U.S. District Judge Marsha Pechman opened her decision by dinging the Trump administration for their use of what equates to procedural gimmickry in the form of a request for a stay pending appeal.
Pechman explained that a request for a stay pending appeal “is an intrusion into the ordinary processes of administrative and judicial review.” The Trump adminstration had requested the stay pending appeal in order to keep the transgender service ban afloat as litigation works its way through the court system.
In the fall of 2017, the U.S. District Court for the Western District of Washington, under Judge James Robart, issued a nationwide preliminary injunction which barred the Trump administration from “taking any action relative to transgender individuals that is inconsistent with the status quo” prior to President Donald Trump‘s summer 2017 announcement of the anti-transgender proposal.
In the spring of 2018, the Trump administration issued a slightly watered-down implementation directive which purported to both “revoke” the prior policy announcement and effect a smaller class of military service members. The administration had hoped that their implementation plan would be viewed by the court as a “new policy” and therefore render the first nationwide preliminary injunction moot. The court rejected this argument and ordered the preliminary injunction to remain in effect.
Then the Trump administration appealed to the Ninth Circuit Court of Appeals along with a motion requesting an expedited ruling. The Ninth Circuit court declined to issue an expedited ruling, so the Trump administration filed their motion for a stay pending appeal. All of the above maneuvering by White House attorneys was done in a bid to implement the transgender service ban, but every step of the way, the courts have ruled against the administration.
Friday’s decision was no different.
In issuing her denial, Judge Pechman determined that the administration’s pending litigation with the Ninth Circuit wasn’t likely to succeed. She wrote:
First, each of the arguments raised by Defendants already has been considered and rejected by the Court, and Defendants have done nothing to remedy the constitutional violations that supported entry of a preliminary injunction in the first instance. Instead, Defendants attempt, once again, to characterize the Implementation Plan and 2018 Memorandum as a “new and different” policy, distinct from the one this Court and others enjoined.
Pechman continued, noting that administration attorneys hadn’t offered any actual evidence as to why they might succeed in the Ninth Circuit. She wrote, “To date, Defendants have steadfastly refused to put before the Court evidence of any justification that predates this litigation.”
Instead, administration attorneys simply claimed, “the Ninth Circuit and/or this Court ultimately . . . are highly likely to conclude that significant deference is appropriate.” Pechman dismissed this conclusory language by reminding the White House that the basic idea of deferring to administration policy on this matter was still an open question.
Pechman also dismissed the Trump administration’s claim that not being able to implement the transgender service ban would result in irreparable harm because Army Chief of Staff General Mark Milley noted “precisely zero” negative incident reports related to transgender service members. Pechman also mentioned how Chief of Naval Operations Admiral John Richardson similarly testified as to the complete absence of negative reports and that in his experiences, “[i]t’s steady as she goes.”
And though her analysis could have stopped there, Judge Pechman put a bow on her decision by noting:
[M]aintaining the injunction pending appeal advances the public’s interest in a strong national defense, as it allows skilled and qualified service members to continue to serve their country.
[image via JOSH EDELSON/AFP/Getty Images]
