The Trump administration is urging a federal district court to exercise caution and not hastily proceed with a lawsuit challenging the revised policy on gender marker designations for passports of transgender and nonbinary individuals.

In February, the American Civil Liberties Union (ACLU) initiated legal action against the government for reversing a longstanding policy that had, for 33 years, permitted individuals to select their gender identity on passports.

The plaintiffs have consistently found favor in the lower courts.

U.S. District Judge Julia Kobick, appointed by President Joe Biden, first intervened in April, issuing an order that temporarily halted the policy change. This action came after a pivotal Supreme Court decision that curtailed the scope of national injunctions. The court then recognized the plaintiffs as a class and maintained the injunction. Despite the government’s appeal, the judge refused to suspend her ruling in July, and the U.S. Court of Appeals for the 1st Circuit upheld this decision in September.

However, a significant development unfolded in November when the U.S. Supreme Court intervened, issuing a shadow docket ruling that temporarily blocked Judge Kobick’s injunction.

On Dec. 9, the plaintiffs essayed a different path.

“Plaintiffs intend to seek an indicative ruling from this Court that it would dissolve the preliminary injunction if it were remanded; if this Court issued an indicative ruling that it would dissolve the preliminary injunction, Plaintiffs would then seek remand from the First Circuit,” their motion reads. “That would provide Plaintiffs and the Classes the fastest route to final judgment and the chance for permanent relief.”

In other words, the plaintiffs want Kobick to move past the injunction battle and to discovery, which was paused during the injunction, and ultimately resolve the case on the merits. But, the plaintiffs say, the current procedural posture has them stuck.

A Christmas Eve filing by the U.S. Department of Justice says such an expeditious path forward would be inherently unfair.

“Although a plaintiff is the master of its complaint, a plaintiff is not free from the consequences of its litigation choices as its lawsuit unfolds,” the government’s 10-page opposition motion reads. “After consuming the Government’s and the Court’s resources in litigating their request for emergency relief, Plaintiffs now attempt to escape the consequences of their litigation strategy by asking the Court to undo the preliminary injunctions the Court granted them. The Court should deny Plaintiffs’ motion as a transparent attempt to evade the consequences of their own litigation strategy.”

To hear the DOJ tell it, the injunction-focused nature of the litigation has resulted in pluses and minuses for both sides so far, while being a fast-paced and costly ride through the legal system.

From the motion, at length:

Plaintiffs successfully obtained a preliminary injunction, followed by class certification on a nationwide basis, and then an extension of the emergency injunctive relief to a certified class. Their strategy hit a snag in November, when the Supreme Court stayed the injunction. By that point, Plaintiffs had already forced the Government to expend tremendous resources into class certification, preliminary injunctions, and stay briefing, all at a breakneck pace. For example, when the Government sought an extension of the deadlines to file an opening brief in the First Circuit and a cross-motion for summary judgment in this Court in light of the lapse of appropriations during the shutdown, Plaintiffs opposed. The Court too committed substantial resources in rapidly deciding Plaintiffs’ motions and adjudicating numerous disputes between the parties.

Now, the Trump administration says the best course of action is to let the appeals process play out in full before the 1st Circuit Court of Appeals because the appellate court is “poised to decide the merits of the preliminary injunctions” issued by Kobick.

And, the opposition motion argues, the plaintiffs are backtracking from a prior position they argued in court.

“Plaintiffs seek to evade that appellate review and deprive the Government of the benefit of that review, even when Plaintiffs themselves previously had opposed the Government’s request for the very relief they seek now—dissolution of the preliminary injunction,” the government’s filing goes on.

To be clear, neither the appellate court nor the Supreme Court ruled on the merits of the injunction. Rather, both reviewing courts took starkly opposite positions on a stay pending the appeal itself.

If the court were to dissolve the injunction, the appeals court would almost certainly rule the appeal dead letter, or in legal terms, moot.

But, with the procedural posture firmly in its favor, the Trump administration would like to maintain the present path and slow down the pace, calling the transgender and nonbinary plaintiffs’ latest gambit “a novel procedural attempt to evade appellate court review.”

“Defendants oppose Plaintiffs’ indicative ruling motion here because the Government should be permitted to present its arguments to the First Circuit (and the Supreme Court if necessary) and obtain appellate review of the preliminary injunctions,” the opposition motion goes on.

The DOJ goes on to say the arguments for an indicative ruling have “no sound basis in law or logic” because the plaintiffs are still “contending that their arguments in support of the preliminary injunctions remain meritorious” and because the plaintiffs still insist on injunctive relief.

“An appeal-mooting remand would prejudice Defendants and would not even give Plaintiffs the injunctive relief they seek in the interim,” the opposition motion continues. “Because Plaintiffs’ request clearly does not meet the standard for such extraordinary relief and is instead an attempt to use procedural chicanery to circumvent a clear order from the Supreme Court, their motion should be denied.”