By Arthur S. Leonard
Arthur S. Leonard is the Robert F. Wagner Professor of Labor and Employment Law at New York Law School.
In a move evidently intended to evade existing preliminary injunctions while reaffirming in its essential elements President Trump’s Twitter announcement from last July 26, categorically prohibiting military service by transgender individuals, the Administration issued three new documents on Friday afternoon, March 23, the date that the President had designated in his August 25, 2017, Memorandum (“Military Service by Transgender Individuals”) for his announced policy to take effect. A new Presidential Memorandum “revoked” Trump’s August Memo and authorized the Defense and Homeland Security Secretaries to “implement any appropriate policies concerning military service by transgender individuals.” Thus, as of the end of March, the policy allowing transgendered individuals to serve and to enlist, first announced by former Secretary of Defense Ashton Carter in June 2016, is in effect, pending the formal adoption of a new policy by Defense Secretary Mattis.
At the same time, Department of Justice (DOJ) attorneys filed with the federal court in Seattle (where one of the challenges to Trump’s original policy is pending (Karnoski v. Trump before District Judge Marsha Pechman) copies of Defense Secretary James Mattis’s Memorandum to the President and a Department of Defense (DOJ) working group’s “Report and Recommendations” that had been submitted to the White House on February 23, in which Mattis recommended a version of Trump’s transgender ban that would effectively preclude military service for most transgender applicants and some of those already serving, although the number affected was not immediately clear. DOJ asked Judge Pechman to lift her preliminary injunction in response to Trump’s “revocation” of his August Memorandum, contending the potential new policy, as explained in the March 23 documents, would not be a categorical ban.