By Brendan Pierson
(Reuters) – A federal appeals court has paused a lower court order blocking President Donald Trump’s ban on transgender people serving in the military, but has signaled that it may quickly reconsider that decision if the military takes action against transgender members.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued what it called an administrative stay of the lower court order late Thursday.
It said that the stay was meant to give it time to consider whether to allow the ban to take effect while it considers the government’s appeal in a lawsuit brought by transgender current and would-be service members.
The panel said that the stay “should not be construed in any way as a ruling on the merits” of the issue. It also said that if “any action occurs that negatively impacts service members,” plaintiffs could file a motion to lift the stay, which the court would consider “expeditiously.”
“It is a stay order that signals to the military that it should not harm service members while the stay motion proceeds,” said Jennifer Levi, a lawyer for the plaintiffs.
Two of the judges on the panel were appointed by Republican presidents – Circuit Judge Justin Walker by Trump during his first term in office and Circuit Judge Karen Henderson by President George H.W. Bush. The third member, Circuit Judge Patricia Millett, was appointed by Democratic President Barack Obama.
The White House and Department of Defense did not immediately respond to requests for comment.
U.S. District Judge Ana Reyes in Washington ruled earlier this month that the government could not enforce the ban while the lawsuit goes forward, finding that it likely violated the U.S. Constitution’s prohibition on sex discrimination.
Trump said in a January executive order that the “adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life.”
To implement the order, the military adopted a new policy requiring anyone with a current diagnosis or history of gender dysphoria to be separated from the military. Gender dysphoria is distress experienced when a person’s gender identity does not align with his or her birth sex.
Reyes, who was appointed by Trump’s Democratic predecessor Joe Biden, wrote in her order blocking the ban that “transgender persons can have the warrior ethos, physical and mental health, selflessness, honor, integrity, and discipline to ensure military excellence.”
(Reporting By Brendan Pierson in New York; Editing by Alexia Garamfalvi and Mark Porter)
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