What Now for the Mattis Transgender Policy?

As I predicted here a couple of weeks ago, the Supreme Court today unanimously denied the government’s petitions for certiorari before judgment in the “transgender in the military” cases.  The real action was, as I suspected, on the accompanying motions to stay two of the injunctions that district courts have imposed to bar implementation of the 2018 Mattis policy.  The Court split 5-4 on that question, and stayed the injunctions.  There is a third injunction in effect, in the Stone v. Trump case in the District of Maryland.  The district judge there has not yet ruled on the government’s motion to dissolve that injunction, filed 10 months ago, but presumably it will now either grant that motion or stay the effect of the injunction.  [UPDATE:  I’m informed that in the fourth case–Doe v. Mattis, in the District of the District of Columbia–the court of appeals has not yet issued its mandate for the trial court to vacate the preliminary injunction there.  That will likely occur on February 25, at which point presumably all the preliminary injunctions will have been stayed or dissolved.]  When all of the injunctions are stayed or dissolved, which should happen by February 25, the Mattis policy, rather than the Obama-era “Carter” policy, will go into effect, and will remain in effect unless and until the Supreme Court holds that the Mattis policy is unconstitutional, which won’t happen until the Spring of 2020 at the earliest.

What does this mean as a practical matter for transgender individuals now serving in the military and those who wish to join the military? In that earlier essay, I tried to answer that question in some detail. Suffice it to say:  It’s complicated.  And in particular, although its restrictions are very cruel and unnecessary, it’s not simply a “transgender ban.”

[UPDATE:  As I have written to a couple of people who asked, current service-members who have already received a medical diagnosis of gender dysphoria before the date the injunctions in Stone and Doe are stayed or dissolved (which could be any day now) are “grandfathered”–they can transition (at DOD’s expense), and at some point act in accordance with the grooming, uniform and facilities rules for persons of their experienced (and thus transitioned) gender.  Virtually all other transgender persons who are currently serving can remain in the military, and (according to DOJ/DOD) be “openly” transgender (in the sense of being able to publicly disclose that they are transgender), but may not transition or act in accord with the grooming/uniform/facilities rules associated with their experienced gender.  If, however, some current service-members (for some reason) receive a diagnosis of dysphoria after the final injunction is stayed (which presumably none of them will seek), I believe they’d have to leave the armed forces.]

  

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).