Appeals Court Administratively Stays Preliminary Injunction Halting Ban on Transgender Military Service

The D.C. Circuit granted an administrative stay this week of the district court's March 18 preliminary injunction that halted enforcement of the Administration's ban on transgender persons serving in the military.

The order in Talbott v. United States of America is temporary, and only "to give the court sufficient opportunity to consider the emergency motion for stay pending appeal." According to the court, it "should not be construed in any way as a ruling on the merits of that motion." Moreover, "[i]f any action occurs that negatively impacts service members under [the Administration's ban] before the court lifts the administrative stay, the plaintiffs may file a motion to lift the administrative stay, and the court will consider it expeditiously." The court also ordered quick briefing on the Administration's motion to stay pending appeal. (Here's the complete docket at the D.C. Circuit.)

The precise effect of the administrative stay is uncertain. On the one hand, it's a stay, and allows the Administration to enforce the ban. But on the other hand, the court will consider any motion to lift the stay in response to Administration enforcement "expeditiously." On the third hand, briefing on the Administration's motion to stay pending appeal (which, unlike the administrative stay, requires the court to assess the merits) is due this week. Whatever happens, it seems, the court will quickly get to the merits (or, more accurately, the likelihood of success on the merits).

All this comes in response to a district court preliminary injunction, which halted enforcement of the Administration's ban on transgender persons serving in the military. In granting the PI, the court said that the ban was based on mere animus, and that it failed at both intermediate scrutiny and rational basis review.

The thorough memo in support of the PI is well worth a read–on the back-and-forth recent history of military service by transgender persons, on the deference that courts owe to the Executive in military matters, and on the fitness of the ban under intermediate scrutiny and rational basis review.