Tuesday, January 22, 2019

Supreme Court allows transgender military ban to be enforced

By Lydia Wheeler 
01/22/19 09:46 AM EST

The Supreme Court on Tuesday granted the Trump administration's request to allow it to temporarily enforce its restrictions on transgender people serving in the military.

The justices stayed district court injunctions that blocked the new policy pending a ruling in the 9th Circuit on the government's appeal.

The court, however, did not agree to review the legality of the new policy, as the administration had asked.

Solicitor General Noel Francisco jumped the normal course of judicial order in November by submitting his request before the regional appeals courts had ruled on the issue.

He urged the justices to immediately take the case and issue a ruling this term, arguing the lower court’s decision blocked a policy that’s “necessary to place the Department of Defense in the strongest position to protect the American people.”

He said the Department of Defense review found that continuing to allow transgender people who have transitioned or seek to transition to serve in the military poses a threat to military effectiveness and readiness.

The justices, however, like for the appeals courts to have considered a case before they weigh in, and even then are selective. It takes four justices to agree to hear a case, and often they only agree to step in if the appeals courts are deeply divided on an issue.

It takes five justices to agree to stay a lower court ruling.

Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, of the court's liberal wing, said they would have denied the application.

Earlier this month, the D.C. Circuit Court of Appeals lifted a preliminary order blocking the ban. The unsigned order said the district court had erred in finding the policy was the equivalent of a blanket ban on transgender service.

The court said the new policy will allow at least some transgender people to continue to serve and receive gender transition-related medical care. The court’s decision was not a final determination on the merits of the case.

But the policy could still not go in to effect because courts in the other three lawsuits against it also issued nationwide injunctions.

The military's transgender policy still cannot change because one nationwide injunction remains in place, a Pentagon official who asked not to be identified said.

In a statement Tuesday afternoon, Lt. Col. Carla Gleason, a Pentagon spokeswoman, said the department is "pleased" with the Supreme Court's decision and that it will "continue to work with the Department of Justice regarding next steps in the pending lawsuits."

Trump first announced in July 2017 via Twitter that he was banning transgender people from the military, saying “the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.”

The policy then-Defense Secretary James Mattis ultimately issued in March disqualified 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. 

Attorneys for active-duty military members challenging the policy argue the lower courts were correct to conclude the restrictions are likely unconstitutional and issue preliminary injunctions.

“Indeed, the fundamental point of the ban — and why it is facially unconstitutional — is that transgender people are deemed categorically ineligible to serve based on a factor unrelated to their individual merit, qualifications, or physical and mental fitness to serve,” attorneys for one of the plaintiffs argued in court documents.

On Tuesday, plaintiffs in the cases against the policy vowed to keep fighting.

Lambda Legal, which filed one of the lawsuits on behalf of nine individual plaintiffs and three organizations, called the Supreme Court's decision to lift the injunctions while not immediately reviewing the case "perplexing."

“For more than 30 months, transgender troops have been serving our country openly with valor and distinction, but now the rug has been ripped out from under them, once again," Lambda Legal counsel Peter Renn said in a statement. "We will redouble our efforts to send this discriminatory ban to the trash heap of history where it belongs.”

Responding to the Supreme Court's decision, the Pentagon said Tuesday it is "critical" that it be allowed to implement its transgender policy.

"As always, we treat all transgender persons with respect and dignity," Pentagon spokesman Jessica Maxwell said in a statement.

“DoD's proposed policy is NOT a ban on service by transgender persons. 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. 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."

Rebecca Kheel contributed to this report, which was updated at 1:31 p.m.


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