President Donald J. Trump speaks with reporters. Credit: Official White House Photo by Joyce N. Boghosian
National LGBT legal groups enlisted three of Big Law's leading appellate firms to oppose the Trump administration's ban on transgender military members at the U.S. Supreme Court.
Three cases are pending in which the U.S. Justice Department has asked the Supreme Court to overturn injunctions that blocked the Trump administration from implementing the new rules. The justices are scheduled to look at the petitions—arising from Washington, D.C., California and Washington state—next week at their Jan. 11 conference.
In the D.C. case, Paul R.Q. Wolfson, co-chairman of appellate and Supreme Court litigation at Wilmer Cutler Pickering Hale and Dorr, is counsel in Trump v. Jane Doe 2. Wolfson, a former assistant to the solicitor general and clerk to Justice Byron White, has argued 21 cases at the Supreme Court.
Lawyers from the National Center for Lesbian Rights and GLBTQ Legal Advocates & Defenders, joined by counsel from Foley Hoag and Wilmer, filed the federal lawsuit challenging the ban on behalf of five transgender service members with nearly 60 years of combined military service, including tours in Iraq and Afghanistan.
Related: NLJ's 2018 Appellate Hot List
U.S. District Judge Colleen Kollar-Kotelly ruled against the government, but a D.C. Circuit panel on Friday dissolved the injunction. The D.C. Circuit judges rejected the notion that the Trump policy was a "blanket" ban on transgender troops. The court said the military's new policy "accommodates at least some of plaintiffs’ interests."
Friday's ruling won't alter the course of the cases, but the Justice Department will likely apprise the Supreme Court of the development.
In the California case Trump v. Stockman, Latham & Watkins appellate partner J. Scott Ballenger, a former clerk to Justice Antonin Scalia, is counsel of record.
The case, filed originally in the U.S. District Court for the Central District of California, was brought by GLBTQ Legal Advocates & Defenders and the National Center for Lesbian Rights. The two legal groups filed the lawsuit on behalf of Equality California and seven plaintiffs who currently serve in the military or have taken steps to enlist.
Ballenger has argued two cases in the Supreme Court and has been on Latham's legal team in many others, including the affirmative action cases involving the universities of Michigan and Texas.
"Wilmer and Latham have been involved in Doe and Stockman, respectively, since the cases were filed in district court," said Shannon Minter, legal director of the National Center for Lesbian Rights. Ballenger and Minter worked together on the Supreme Court case, Christian Legal Society v. Martinez. "We are fortunate to be working with two such great firms."
Meanwhile, a team from Kirkland & Ellis is leading the fight in the third case, Trump v. Karnoski, which was originally filed in the U.S. District Court for the Western District of Washington. Kirkland's Stephen Patton, who successfully argued for the plaintiffs in the lower court, is lead counsel. Patton, of counsel in Kirkland's litigation group in Chicago, returned to Kirkland last year after serving as Chicago's top in-house lawyer and senior legal adviser to Mayor Rahm Emanuel.
In July, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld a preliminary injunction against the Trump ban on transgender troops serving in the military.
Lambda Legal and OutServe-SLDN filed the lawsuit challenging the ban on behalf of six currently serving military members and three who seek to enlist; the Human Rights Campaign, Gender Justice League and the American Military Partner Association. The state of Washington also challenged the ban and is opposing the Trump petition in the Supreme Court.
"Steve is a truly remarkable attorney," Lambda Legal counsel Peter Renn said. "He was our oralist in the Ninth Circuit and there is a natural synergy for continuing to work with him on issues in which we have developed expertise. We are truly fortunate to have Kirkland going toe to toe with the power of the federal government. They have devoted substantial resources to the litigation and have put their A-team on this case."
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