YES!!! COURT OF APPEALS AFFIRMS INJUNCTION BARRING HEGSETH & TRUMP FROM DISCHARGING PEOPLE FROM THE MILITARY FOR BEING TRANS!
by Anne P. Mitchell, Esq. – giving you the facts and truth about this administration and the law, in plain English
What a way to start the week and the month! On June 1st the Court of Appeals handed down its 107-page decision in Talbott v. United States (included for Notes from the Front members). This is the case that is challenging the Trump administration’s policy of not allowing trans people in the military, as memorialized in the executive order “Prioritizing Military Excellence and Readiness”. (As if he would know excellence if it smacked him across the face and called him Maria.)
This is EO 14183. (Also included for Notes from the Front members, just be sure not to read it on a full stomach) that says, among other things, that “the Armed Forces have been afflicted with radical gender ideology” and that “It is the policy of the United States Government to establish high standards for troop readiness, lethality, cohesion, honesty, humility, uniformity, and integrity. This policy is inconsistent with the medical, surgical, and mental health constraints on individuals with gender dysphoria. This policy is also inconsistent with shifting pronoun usage or use of pronouns that inaccurately reflect an individual’s sex.”
Based on EO 14183, Hegseth promulgated a policy which boiled down to “no trans people allowed in the military”. We’ll call that “the Hegseth Policy”.
Now keep in mind that appeals and appellate decisions are always based on the application of law – *not* on the actual merits of the underlying case itself.
There has been a lot of litigation in this case, which was initially filed on January 28th of last year, just *one* day after EO 14183 came out.
In March of last year the judge in the District Court (the initial court), Judge Ana Reyes, issued a preliminary injunction barring the administration from implementing the Hegseth Policy.
At the time that Judge Reyes’ injunction was issued there were 14 plaintiffs who were on active duty, one plaintiff who was in basic training, and five plaintiffs who were in the process of enlisting.
It is that injunction that the administration appealed to the Court of Appeals.
It’s important to understand that one of the primary purposes of an injunction is to *preserve the status quo*.
So, in this case the status quo was that trans people were and are in the military.
You need to understand this to understand what the Court of Appeals did. (As an aside, the Court of Appeals narrowed the injunction from a broad “universal” injunction to only applying to the Plaintiffs – so watch for a request to certify a class in this one.)
The Court of Appeals, also known as a Circuit Court (in this case for the D.C. Circuit) heard the case with a three-judge panel consisting of Judges Rogers, Wilkins, and Walker.
Basically the Court of Appeals distinguished between service members who were *already* serving in the military, and people who wanted to join the military. Because of this you see this in the 107-page Court of Appeals opinion:
“Opinion announcing the judgment of the Court filed by
Circuit Judge WILKINS.
Opinion concurring in part and dissenting in part filed by
Senior Circuit Judge ROGERS.
Dissenting opinion filed by Circuit Judge WALKER”
Keep in mind that the administration are the “appellants” and the Plaintiffs in the underlying case are the “appellees”. That is because the *administration* *appealed* the lower court’s injunction, so they are the appellants.
Judge Wilkins explains in the main opinion that it is very clear that Trump’s executive order, and Hegseth’s policy which is based on that order, are based in animus (in other words based on hostility towards trans people), and not for any legitimate readiness reason. Says the Court:
“Specifically, Appellants have not shown how a preliminary injunction preventing them from removing current servicemembers will harm national security. As shown above, Appellants have not contested that all of the currently serving Plaintiff-Appellees, who dedicated a combined 130 years to military service and collectively earned more than 80 commendations, have served honorably and met all military standards during their service. Appellants have thus forfeited any argument that, for purposes of the balance of equities analysis, retaining these servicemembers will harm national security. In sum, the balance of equities, as well as the public interest, tips in favor of the Plaintiff-Appellees who are currently serving.”
*However*, the Court goes on to say:
“However, the calculus is different for those Plaintiff-Appellees who seek to join the military. While Plaintiff-Appellees who seek admission to the military have been deprived of constitutional freedoms, the harms and equities of their situations are not identical to those of persons already serving. Plaintiff-Appellees seeking admission to the military can still obtain full relief later, following a final adjudication on the merits. For those servicemembers facing expulsion, it is not clear how easily they can be reinstated and made whole. But even if they can be reinstated after being separated, it appears to us to be a much greater hardship to end a military career than to delay the start of one.”
Now remember, this *entire thing* is *only* about the injunction, and protecting the status quo while the litigation ensues. The status quo for active service members is that they are, well, active service members. That isn’t the case for people applying to join the military. So the Court of Appeals opinion, authored by Judge Wilkins, says that the lower court abused its judicial discretion by including those who weren’t yet in the military in the injunction.
BUT, note how even while foreshadowing that they are about to say that the injunction doesn’t apply to people wanting to join the military, the Court says “While Plaintiff-Appellees who seek admission to the military have been deprived of constitutional freedoms”! It’s very clear how the Court sees the actual merits issues!
On the other hand, Judge Rogers thinks that the injunction should also apply to those wanting to join the service. This is why he concurs in part and dissents in part.
Judge Walker, on the other other hand, dissents entirely.
This means, of the 3-judge panel:
2 votes for yes for active duty (Judge Wilkins and Judge Rogers)
2 votes for no for applicants (Judge Wilkins and Judge Walker)
1 vote for yes for applicants (Judge Rogers, who votes yes for everything)
1 vote no for active duty (Judge Walker, who votes no for everything)
And that is how you arrive at the Court’s opinion and order affirming the injunction for active duty, and vacating (voiding) it for applicants.
This does *not* mean that the Court thinks that it’s ok to discriminate against and reject trans applicants, in fact clearly it doesn’t where it says they have been deprived of constitutional freedoms. It means that until the case is decided they may be SOL (that’s a real legal term).
But personally I believe that the handwriting is on the wall. Which will be followed by ketchup on the wall.
Notes from the Front members: The lower court’s opinion and order, the Court of Appeals opinion and order, and the executive order that started this whole thing, are in your inbox now!
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P.S. If you actually read all the way to the bottom please leave a comment that includes the word “SOL”. It will show me that my efforts aren’t in vain and that people actually *do* read these things, and it will drive those who just skim crazy wondering just why everyone is talking about ! ;~)
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