Court Battles

Supreme Court allows transgender military ban to be enforced

The Supreme Court handed President Trump a partial win on Tuesday, allowing the administration to temporarily enforce its restrictions on transgender people serving in the military.

The court ruled 5-4 to stay two district court orders that blocked the new policy, with the court’s liberal wing dissenting. The justices said they are waiting for the 9th Circuit Court of Appeals to weigh in.

“The department is pleased with the orders issued by the Supreme Court today,” Pentagon spokeswoman Lt. Col. Carla Gleason said in a statement. “We will continue to work with the Department of Justice regarding next steps in the pending lawsuits. As always, we treat all transgender persons with respect and dignity.”

{mosads}The Supreme Court’s decision does leave one nationwide injunction on Trump’s order in place. As a result, Pentagon officials said they cannot completely implement the new policy yet.

Solicitor General Noel Francisco did not seek a stay of one injunction that was issued by a federal district court in Maryland. As a result, Pentagon officials said they cannot implement the new policy yet.

A government’s request to dissolve that injunction is still pending in the district court. But legal experts say the Supreme Court’s decision to grant Francisco’s other stay requests serves as a signal that the lower courts should also stay the order.  

LGBT rights advocates, however, say they were encouraged — at least for now — that the Pentagon is acknowledging that third order.

“It means they are not going to take steps to enforce the ban,” said Shannon Minter, legal director of the National Center for Lesbian Rights, co-counsel in two of the lawsuits against the policy.

“That’s been the kind of question that was up in the air today and certainly it’s imperative that transgender service members and transgender people seeking to enlist know the policy and whether DoD [Department of Defense] is going to enforce the ban or not.”

Transgender troops have been serving openly since June 2016 when the Obama administration lifted the previous ban on their service.

In July 2017, Trump tweeted he would reverse the open service policy, saying he would “not accept or allow transgender individuals to serve in any capacity in the U.S. Military.”

Four lawsuits were filed against the ban, and lower courts in all four had issued injunctions blocking the policy from taking effect while the suits work their way through the court system.

In March, then-Defense Secretary James Mattis released an updated transgender policy that would disqualify from service anyone who has already transitioned or seeks to transition in the future, as well as anyone who has a history or diagnosis of gender dysphoria. But it included exemptions for active-duty military members already serving openly and those willing to serve in accordance with their sex assigned at birth.

One of the four injunctions was previously lifted earlier in January when the D.C. Circuit Court of Appeals ruled the district court had erred in finding the Mattis plan was the equivalent of a blanket ban on transgender service.

In responding to the Supreme Court decision Tuesday, the Pentagon argued the Mattis policy is “NOT” a ban, adding it is “critical” the Defense Department be allowed to implement it.

“It is critical that DoD be permitted to implement personnel policies that it determines are necessary to ensure the most lethal and combat effective fighting force in the world,” Gleason said. “DoD’s proposed policy is based on professional military judgment and will ensure that the U.S. Armed Forces remain the most lethal and combat effective fighting force in the world.”

Injunction or no injunction, the Palm Center, which studies and advocates on issues of gender and sexuality in the military, urged the Pentagon not to implement its new policy.

Director Aaron Belkin argued in a statement that restrictions on transgender military service will undermine the military’s readiness, limit its talent pool and “wreak havoc” on the lives and careers of 14,700 transgender troops.

“While it is unfortunate that the Supreme Court has allowed military discrimination to be reinstated, it’s critical to understand that the military is not required, and has no need, to reinstate the transgender ban, which would cause destabilizing whipsaws in personnel policy,” he said.

Tuesday’s ruling also renewed calls for congressional action.

“President Trump’s attempts to defend this ban are as farcical as ever and only serve to defame thousands of transgender troops,” Mara Keisling, executive director of the National Center for Transgender Equality, said in a statement.

“It is more important than ever for Congress to act immediately to defend thousands of brave and honorable transgender service members from this thoughtlessly destructive president.”

House Armed Services Committee Chairman Adam Smith (D-Wash.) pledged to continue to fight against what he called a “bigoted policy.”

“Anyone who is qualified and willing should be allowed to serve their country openly, without their career being affected by an arbitrary, discriminatory directive from the president,” he said in a statement.

Smith has previously said protecting LGBT troops will be a top priority for his chairmanship and that he wants to pass legislation for transgender people similar to the 2010 repeal of “don’t ask, don’t tell” for gay, lesbian and bisexual troops. But he has acknowledged the issue will likely have to be left to the courts while the Senate remains in Republican control.

Sen. Kirsten Gillibrand (D-N.Y.), who has announced she will run for president in 2020, said Tuesday she will reintroduce legislation to ensure transgender people can enlist in the military.

Transgender troops “are willing to die for this country, they make extraordinary sacrifices for our freedom, and they are unafraid to fight for our most sacred values as Americans,” Gillibrand said in a statement. “

“Banning them from military service is a rebuke of their patriotism, it undermines our military readiness, and it goes against the congressional testimony of the heads of the Army, Navy, Air Force, Marine Corps and Coast Guard, who each confirmed that transgender service members are serving in our military without any problems,” added Gillibrand, who asked the service chiefs at congressional hearings last year whether open service has caused any problems with unit cohesion, morale or discipline.

Tuesday’s ruling does allow the policy to take effect while the cases are being litigated in the lower courts.

The justices refused without comment to review the government’s immediate appeals of the district court orders that blocked the policy. Those requests had asked the justices to bypass normal judicial order and review the dispute before the regional appeals courts had weighed in.

The justices have not weighed the constitutionality of Trump’s policy, but some argue their ruling shows there is already support among a majority on the court if and when the justices are again asked to step in.

“Based on past experience, when the court decides to put a stay on lower court rulings that is some indication what the court thinks on the merits,” said Steve Sanders, an associate professor Indiana University Maurer School of Law, who teaches constitutional law.

“Going into this we know there are five justices who may be sympathetic or willing to tolerate what the Trump administration wants to do.”

Updated at 5:38 p.m. 

Tags Adam Smith Donald Trump James Mattis Kirsten Gillibrand Supreme Court Transgender ban Trump administration
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