We know that the Trump and the GOP have and are continuing to fill judicial vacancies with conservative cuckoos. This decision is thus just a likely harbringer of many more to come. Trump may have lost the House, but he continues to grow his ability to institute his hateful policies.
The United States Court of Appeals For the District of Columbia today ruled that one of the injunctions preventing Trump from implementing his transgender ban was erroneously put in place, and overturned it (fortunately, there are other injunctions in other jurisdictions in place, so this decision apparently has no actual effect, except for making an eventual ruling by the Supreme Court more likely, and we have little doubt how that vote will go…).
The decision in Doe v Shananan is here. Some of the relevant text:
It was clear error to say there was no significant change with respect to at least two aspects of the policy recommended by Secretary of Defense James Mattis in February 2018 and approvedby the President in March 2018 (“the Mattis Plan”). First, the District Court made an erroneous finding that the Mattis Plan was not a new policy but rather an implementation of the policy directives enjoined in October 2017. The government took substantial steps to cure the procedural deficiencies the court identified in the enjoined 2017 Presidential Memorandum. These included the creation of a panel of military and medical experts, the consideration of new evidence gleaned…
Second, the District Court made an erroneous finding that the Mattis Plan was the equivalent of a blanket ban on transgender service.
“[M]ilitary interests do not always trump other considerations, and [the Supreme Court has] not held that they do.”… Nonetheless, the “Constitution vests ‘[t]he complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force’ exclusively in the legislative and executive branches,” … and it is “difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches directly responsible—as the Judicial Branch is not—to the electoral process,” …
We acknowledge that the military has substantial arguments for why the Mattis Plan complies with the equal protection principles of the Fifth Amendment… we must recognize that the Mattis Plan plausibly relies upon the “considered professional judgment” of “appropriate military officials,” Goldman, 475 U.S. at 509, and appears to permit some transgender individuals to serve in the military consistent with established military mental health, physical health, and sex-based standards.
So the court will allow the military to discriminate in the absence of any evidence of detriment, as long as the decision is “complex, subtle…” and doesn’t explicitly (but likely in practice) ban every single transgender individual who might want to serve. Got it.