Supreme Court Allows Transgender Military Ban to Remain in Effect

Written by Molly McDermid

 

On January 15, 2019, the United States Supreme Court decided in a 5-4 decision to allow the Trump Administration’s transgender military ban to remain in effect for the time being. The decision to stay lower court injunctions allows the policy to continue while cases challenging the ban, Trump v. Karnski and Trump v. Stockman, make their way through the United States Court of Appeals for the Ninth Circuit. The Court additionally denied the Government’s request to grant certiorari immediately in an effort to bypass the Court of Appeals decisions. Supreme Court Rules indicate that the process of reviewing a federal trial court decision, prior to the ruling of a Court of Appeals, occurs only in cases of imperative public importance requiring immediate action by the Court. By refusing to grant certiorari without comment, the Supreme Court’s decision indicates that this case is not one of those rare occasions. Therefore, the nation must wait for the issue to proceed through the courts in its normal manner.

Background

The ban at issue is the product of a series of tweets and memoranda issued by President Donald J. Trump. A tweet stated, “the Unites States government will not accept or allow . . . [t]ransgender individuals to serve in any capacity in the U.S. Military.” In his later released memo, the President directed the Secretary of Defense and the Secretary of Homeland Security “to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016.” President Trump’s policy effectively reverses the Obama-era policy, which allowed transgender Americans to openly serve in the military. The Obama Administration’s policy additionally prohibited transgender individuals from being discharged solely based on being transgender.

The Trump Administration’s policy prohibits most transgender Americans from serving in the military, with some exceptions. Exceptions include: (1) current active-duty members of the military diagnosed with gender dysphoria; (2) those stable in their biological sex for thirty-six consecutive months prior to entering military service; (3) those diagnosed with gender dysphoria after beginning service, but do not require gender change; and (4) those with a history of gender dysphoria, but who serve in their biological sex.

Supreme Court Ruling

The Government argued for the Court to bypass the Ninth Circuit decision and grant certiorari to rule on the District Courts’ nationwide preliminary injunction against the  transgender policy. However, the Court denied certiorari and accepted the Government’s alternative argument for a stay, in turn reinstating the transgender military ban while the matter is decided by the Ninth Circuit.

The Government’s argument focused on the district courts’ “trend” of issuing nationwide injunctions against major Executive policy decisions. The Government stated that in two years, the district courts have issued twenty-five nationwide injunctions against major Executive policy decisions. Additionally, the Government stated that these nationwide preliminary injunctions have led to “intrusive discovery into Executive Branch decision-making, in a number of instances, blanket abrogation’s of the deliberative-process privilege.” The Government argued that these acts by the lower courts have significantly infringed on the Executive Branch’s ability to implement its policies. The Supreme Court responded by lifting the injunctions that were blocked the implementation of the Executive’s transgender military policy.

Although the decision was viewed negatively to those advocating for transgender rights, advocates are also pleased by the Court’s decision not to immediately grant certiorari prior to the Ninth Circuit’s decisions. Jennifer L. Levi, director of the Transgender Rights Project of GLBTQ Legal Advocates and Defenders  stated, “In declining to hear these cases, the Supreme Court saw through the contrived efforts to gin up a national crisis.” Further, advocates say that the decision to deny certiorari at this time may have avoided an expedited decision in favor of the Trump Administration’s policy, due to the conservative majority on the bench.

Conclusion

For now, the status of transgender service members remains uncertain. According to the Supreme Court ruling, the Trump Administration’s transgender restrictions will remain in effect until the Ninth Circuit rules on the issue.


Sources

Adam Liptak, Supreme Court Revives Transgender Ban for Military Service, N.Y. TIMES, (Jan. 22, 2019).

Application for a Stay in the Alternative to a Writ of Certiorari Before Judgement to the United States Court of Appeals for the District of Columbia, Donald J. Trump v. Jane Doe 2, No. 18-667.

Ariane de Vogue and Zachary Cohen, Supreme Court Allows Transgender Military Ban to go into Effect, CNN, (Jan. 22, 2019).

David Welna and Bill Chappell, Supreme Court Revives Trump’s Ban on Transgender Military Personnel, For Now, NPR, (Jan. 22, 2019).

Memorandum from President Donald J. Trump to the Secretary of Defense and the Secretary of Homeland Security (Aug. 25, 2017) (on file with author).

Photo courtesy of The Hill.

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