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Trump admin turns to Supreme Court to ban trans people from military
Four courts have issued orders against anti-trans policy
On Friday, U.S. Solicitor General Neil Francisco submitted petitions for certiorari in three cases calling on the court to review the litigation and reverse the preliminary injunctions enjoining enforcement of Trump’s transgender ban.
“In arriving at that new policy, Secretary Mattis and a panel of senior military leaders and other experts determined that the prior policy, adopted by Secretary Carter, posed too great a risk to military effectiveness and lethality,” Francisco writes. “As a result of nationwide preliminary injunctions issued by various district courts, however, the military has been forced to maintain that prior policy for nearly a year. And absent this courtās prompt intervention, it is unlikely that the military will be able to implement its new policy any time soon.”
The petitions from the solicitor general were expected. In two cases challenging Trump’s ban, the U.S. Justice Department submitted letters to lower federal appeals courts calling for expedited rulings, saying the Trump administration wanted to file a petition by Nov. 23 so justices could hear the case in their current term.
Francisco echoes that sense of urgency in his request to the court. In one petition, the solicitor general writes Supreme Court review is “warranted to ensure that the injunction does not remain in place any longer than is necessary.”
“Even if the government were immediately to seek certiorari from an adverse decision of the court of appeals, this court would not be able to review that decision in the ordinary course until next term at the earliest,” Francisco writes. “In the interim, the military would be forced nationwide to maintain the Carter policy ā a policy that the military has concluded poses a threat to ‘readiness, good order and discipline, sound leadership, and unit cohesion,’ which ‘are essential to military effectiveness and lethality.'”
Francisco also writes the Supreme Court should take up the cases to resolve the issue of whether banning transgender people from the military amounts to violation of equal protection under the U.S. Constitution.
The solicitor general sent the petitions to the Supreme Court with respect to the injunctions issued in three cases. Two ā Karnoski v. Trump and Stockman v. Trump ā are pending before the U.S. Ninth Circuit Court of Appeals and one ā Doe v. Trump ā is before the D.C. Circuit Court of Appeals.
Jennifer Levi, the transgender rights project director for GLBTQ Advocates & Defenders and lead attorney in the Stockman and Doe cases, said in a statement the Supreme Court should resist taking up the transgender military cases.
āThere is no urgency here and no reason for the court to weigh in at this juncture,ā Levi said. āThe injunctions preserve the status quo of the open service policy that was thoroughly vetted by the military itself and has been in place now for more than two years. This is simply one more attempt by a reckless Trump administration to push through a discriminatory policy. The policy flies in the face of military research and dozens of top military experts.ā
In the Ninth Circuit, a three-judge panel heard oral augments on Oct. 10 in the case of Karnoski v. Trump ā which was filed by Lambda Legal and OutServe-SLDN ā on whether to lift the injunction in the lawsuit, but has yet to render an opinion. Oral arguments are scheduled Dec. 10 before the D.C. Circuit Court of Appeals in the case of Doe v. Trump, which was filed by the National Center for Lesbian Rights and GLBTQ Advocates & Defenders. Stockman v. Trump, which was filed by Equality California, is also pending before the Ninth Circuit.
Rick Zbur, executive director of Equality California, said in a statement the timing of the petitions during the Thanksgiving holiday speaks volumes about the values of the Trump administration.
“As Americans come together and give thanks for the sacrifices made by our brave service members and their families, the Trump-Pence Administration is focused on undermining our military by tripling down on this discriminatory ban,” Zbur said. āThere are thousands of transgender service members bravely serving the nation with distinction. The administration ought to be thanking them for their service ā not trying to score political points by purging them from our military.ā
After tweeting in July 2017 he’d ban transgender Trump issued the order, Trump issued an order in October 2017 directing the Pentagon to implement the policy. Months later in February 2018, Defense Secretary James Mattis delivered to Trump his implementation plan, which generally bars transgender service, although transgender service members who’ve already come out and currently serving would be able to remain. Trump reveal the recommendations in March, allowing the Pentagon would implement the plan.
Critics pounced on the Mattis findings for relying on junk science adverse to transgender people. Those same conclusions are found in the solicitor general’s petitions to the Supreme Court. For example, one petition points out “individuals with a history of gender dysphoria” would be able to join the military if “they have not undergone gender transition, are willing and able to serve in their biological sex, and can show 36 months of stability (i.e., the absence of gender dysphoria) before joining,” even those each of those conditions fly in the face of the experience of being transgender.
Aaron Belkin, director of the San Francisco-based Palm Center, said in a statement the solicitor general repeats a false assertion allowing transgender people to serve poses substantial risks.
āThe Trump administration is trying to frame the successful policy of including transgender troops not just as a failure, but a failure that is so severe that the Supreme Court must weigh in on an emergency basis,” Belkin said. “Its assertion makes a mockery of the evidence. Transgender service members have compiled a two-year record of achievement serving America on the front lines. They are proving every day what military leaders and medical professionals told us: That inclusive service strengthens the U.S. military and makes our country safer.ā
Even before Trump issued his directive ordering the Pentagon to implement the policy, LGBT legal groups sued to block him from implementing it. A trial court in D.C. in the case of Doe v. Trump was the first to block Trump from implementing the policy, although a total of four district court issued preliminary injunctions and two federal appeals courts upheld them on appeal.
Shannon Minter, legal director of National Center for Lesbian Rights, said in a statement implementation of the ban would harm the estimated 15,000 transgender people serving in the armed forces as well transgender people who wish to join.
āThe great majority of people in this country recognize that transgender people who can meet the same standards as others should have an equal opportunity to serve,ā Minter said. “Allowing President Trumpās ban to be implemented would upend thousands of lives and weaken our armed forces.ā
The question presented in the petitions is whether the district courts erred in preliminary enjoining the nationwide enactment of the policy Defense Secretary James Mattis proposed. The solicitor general calls for the court to grant all three petitions and consolidate the cases for review before the Supreme Court.
Peter Renn, counsel for Lambda Legal, said in a statement Trump administration is seeking to “short-circuit established practice” by asking the Supreme Court to weigh in on an injunction before the Ninth Circuit has rendered a decision.
āThis highly unusual step is wildly premature and inappropriate, both because there is no final judgment in the case, and because even the preliminary issue on appeal has not yet been decided,” Renn added. “It seems the Trump administration canāt wait to discriminate. Yet again, the Trump administration flouts established norms and procedures. There is no valid reason to jump the line now and seek U.S. Supreme Court review before the appellate courts have even ruled on the preliminary issues before them.ā
The petitions before the Supreme Court represents the first opportunity the Supreme Court has had to weigh in on the transgender ban. (The solicitor general filed a petition in September with respect a dispute over lower court decision in a documents dispute in the discovery process, but rescinded that petition when the Ninth Circuit issued the stay on that issue.)
It remains to seen whether the court will grant the petitions. It takes of vote of at least four justices to grant a writ of certiorari, or agree to take up a case.
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Honoring the legacy of New Orleansā 1973 UpStairs Lounge fire
Why the arson attack that killed 32 gay men still resonates 50 years later
On June 23 of last year, I held the microphone as a gay man in the New Orleans City Council Chamber and related a lost piece of queer history to the seven council members. I told this story to disabuse all New Orleanians of the notion that silence and accommodation, in the face of institutional and official failures, are a path to healing.
The story I related to them began on a typical Sunday night at a second-story bar on the fringe of New Orleansā French Quarter in 1973, where working-class men would gather around a white baby grand piano and belt out the lyrics to a song that was the anthem of their hidden community, āUnited We Standā by the Brotherhood of Man.
āUnited we stand,ā the men would sing together, ādivided we fallā ā the words epitomizing the ethos of their beloved UpStairs Lounge bar, an egalitarian free space that served as a forerunner to todayās queer safe havens.
Around that piano in the 1970s Deep South, gays and lesbians, white and Black queens, Christians and non-Christians, and even early gender minorities could cast aside the racism, sexism, and homophobia of the times to find acceptance and companionship for a moment.
For regulars, the UpStairs Lounge was a miracle, a small pocket of acceptance in a broader world where their very identities were illegal.
On the Sunday night of June 24, 1973, their voices were silenced in a murderous act of arson that claimed 32 lives and still stands as the deadliest fire in New Orleans history ā and the worst mass killing of gays in 20th century America.
As 13 fire companies struggled to douse the inferno, police refused to question the chief suspect, even though gay witnesses identified and brought the soot-covered man to officers idly standing by. This suspect, an internally conflicted gay-for-pay sex worker named Rodger Dale Nunez, had been ejected from the UpStairs Lounge screaming the word “burn” minutes before, but New Orleans police rebuffed the testimony of fire survivors on the street and allowed Nunez to disappear.
As the fire raged, police denigrated the deceased to reporters on the street: āSome thieves hung out there, and you know this was a queer bar.ā
For days afterward, the carnage met with official silence. With no local gay political leaders willing to step forward, national Gay Liberation-era figures like Rev. Troy Perry of the Metropolitan Community Church flew in to āhelp our bereaved brothers and sistersā ā and shatter officialdomās code of silence.
Perry broke local taboos by holding a press conference as an openly gay man. āItās high time that you people, in New Orleans, Louisiana, got the message and joined the rest of the Union,ā Perry said.
Two days later, on June 26, 1973, as families hesitated to step forward to identify their kin in the morgue, UpStairs Lounge owner Phil Esteve stood in his badly charred bar, the air still foul with death. He rebuffed attempts by Perry to turn the fire into a call for visibility and progress for homosexuals.
āThis fire had very little to do with the gay movement or with anything gay,ā Esteve told a reporter from The Philadelphia Inquirer. āI do not want my bar or this tragedy to be used to further any of their causes.ā
Conspicuously, no photos of Esteve appeared in coverage of the UpStairs Lounge fire or its aftermath ā and the bar owner also remained silent as he witnessed police looting the ashes of his business.
āPhil said the cash register, juke box, cigarette machine and some wallets had money removed,ā recounted Esteveās friend Bob McAnear, a former U.S. Customs officer. āPhil wouldnāt report it because, if he did, police would never allow him to operate a bar in New Orleans again.ā
The next day, gay bar owners, incensed at declining gay bar traffic amid an atmosphere of anxiety, confronted Perry at a clandestine meeting. āHow dare you hold your damn news conferences!ā one business owner shouted.
Ignoring calls for gay self-censorship, Perry held a 250-person memorial for the fire victims the following Sunday, July 1, culminating in mourners defiantly marching out the front door of a French Quarter church into waiting news cameras. āReverend Troy Perry awoke several sleeping giants, me being one of them,ā recalled Charlene Schneider, a lesbian activist who walked out of that front door with Perry.
Esteve doubted the UpStairs Lounge storyās capacity to rouse gay political fervor. As the coroner buried four of his former patrons anonymously on the edge of town, Esteve quietly collected at least $25,000 in fire insurance proceeds. Less than a year later, he used the money to open another gay bar called the Post Office, where patrons of the UpStairs Lounge ā some with visible burn scars ā gathered but were discouraged from singing āUnited We Stand.ā
New Orleans cops neglected to question the chief arson suspect and closed the investigation without answers in late August 1973. Gay elites in the cityās power structure began gaslighting the mourners who marched with Perry into the news cameras, casting suspicion on their memories and re-characterizing their moment of liberation as a stunt.
When a local gay journalist asked in April 1977, āWhere are the gay activists in New Orleans?,ā Esteve responded that there were none, because none were needed. āWe donāt feel weāre discriminated against,ā Esteve said. āNew Orleans gays are different from gays anywhere elseā¦ Perhaps there is some correlation between the amount of gay activism in other cities and the degree of police harassment.ā
An attitude of nihilism and disavowal descended upon the memory of the UpStairs Lounge victims, goaded by Esteve and fellow gay entrepreneurs who earned their keep via gay patrons drowning their sorrows each night instead of protesting the injustices that kept them drinking.
Into the 1980s, the story of the UpStairs Lounge all but vanished from conversation ā with the exception of a few sanctuaries for gay political debate such as the local lesbian bar Charleneās, run by the activist Charlene Schneider.
By 1988, the 15th anniversary of the fire, the UpStairs Lounge narrative comprised little more than a call for better fire codes and indoor sprinklers. UpStairs Lounge survivor Stewart Butler summed it up: āA tragedy that, as far as I know, no good came of.ā
Finally, in 1991, at Stewart Butler and Charlene Schneiderās nudging, the UpStairs Lounge story became aligned with the crusade of liberated gays and lesbians seeking equal rights in Louisiana. The halls of power responded with intermittent progress. The New Orleans City Council, horrified by the story but not yet ready to take its look in the mirror, enacted an anti-discrimination ordinance protecting gays and lesbians in housing, employment, and public accommodations that Dec. 12 ā more than 18 years after the fire.
āI believe the fire was the catalyst for the anger to bring us all to the table,ā Schneider told The Times-Picayune, a tacit rebuke to Esteveās strategy of silent accommodation. Even Esteve seemed to change his stance with time, granting a full interview with the first UpStairs Lounge scholar Johnny Townsend sometime around 1989.
Most of the figures in this historic tale are now deceased. Whatās left is an enduring story that refused to go gently. The story now echoes around the world ā a musical about the UpStairs Lounge fire recently played in Tokyo, translating the gay underworld of the 1973 French Quarter for Japanese audiences.
When I finished my presentation to the City Council last June, I looked up to see the seven council members in tears. Unanimously, they approved a resolution acknowledging the historic failures of city leaders in the wake of the UpStairs Lounge fire.
Council members personally apologized to UpStairs Lounge families and survivors seated in the chamber in a symbolic act that, though it could not bring back those who died, still mattered greatly to those whose pain had been denied, leaving them to grieve alone. At long last, official silence and indifference gave way to heartfelt words of healing.
The way Americans remember the past is an active, ongoing process. Our collective memory is malleable, but it matters because it speaks volumes about our maturity as a people, how we acknowledge the pastās influence in our lives, and how it shapes the examples we set for our youth. Do we grapple with difficult truths, or do we duck accountability by defaulting to nostalgia and bluster? Or worse, do we simply ignore the past until it fades into a black hole of ignorance and indifference?
I believe that a factual retelling of the UpStairs Lounge tragedy ā and how, 50 years onward, it became known internationally ā resonates beyond our current divides. It reminds queer and non-queer Americans that ignoring the past holds back the present, and that silence is no cure for what ails a participatory nation.
Silence isolates. Silence gaslights and shrouds. It preserves the power structures that scapegoat the disempowered.
Solidarity, on the other hand, unites. Solidarity illuminates a path forward together. Above all, solidarity transforms the downtrodden into a resounding chorus of citizens ā in the spirit of voices who once gathered āround a white baby grand piano and sang, joyfully and loudly, āUnited We Stand.ā
Robert W. Fieseler is a New Orleans-based journalist and the author of āTinderbox: the Untold Story of the Up Stairs Lounge Fire and the Rise of Gay Liberation.ā
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New Supreme Court term includes critical LGBTQ case with ‘terrifying’ consequences
Business owner seeks to decline services for same-sex weddings
The U.S. Supreme Court, after a decision overturning Roe v. Wade that still leaves many reeling, is starting a new term with justices slated to revisit the issue of LGBTQ rights.
In 303 Creative v. Elenis, the court will return to the issue of whether or not providers of custom-made goods can refuse service to LGBTQ customers on First Amendment grounds. In this case, the business owner is Lorie Smith, a website designer in Colorado who wants to opt out of providing her graphic design services for same-sex weddings despite the civil rights law in her state.
Jennifer Pizer, acting chief legal officer of Lambda Legal, said in an interview with the Blade, “it’s not too much to say an immeasurably huge amount is at stake” for LGBTQ people depending on the outcome of the case.
“This contrived idea that making custom goods, or offering a custom service, somehow tacitly conveys an endorsement of the person ā if that were to be accepted, that would be a profound change in the law,” Pizer said. “And the stakes are very high because there are no practical, obvious, principled ways to limit that kind of an exception, and if the law isn’t clear in this regard, then the people who are at risk of experiencing discrimination have no security, no effective protection by having a non-discrimination laws, because at any moment, as one makes their way through the commercial marketplace, you don’t know whether a particular business person is going to refuse to serve you.”
The upcoming arguments and decision in the 303 Creative case mark a return to LGBTQ rights for the Supreme Court, which had no lawsuit to directly address the issue in its previous term, although many argued the Dobbs decision put LGBTQ rights in peril and threatened access to abortion for LGBTQ people.
And yet, the 303 Creative case is similar to other cases the Supreme Court has previously heard on the providers of services seeking the right to deny services based on First Amendment grounds, such as Masterpiece Cakeshop and Fulton v. City of Philadelphia. In both of those cases, however, the court issued narrow rulings on the facts of litigation, declining to issue sweeping rulings either upholding non-discrimination principles or First Amendment exemptions.
Pizer, who signed one of the friend-of-the-court briefs in opposition to 303 Creative, said the case is “similar in the goals” of the Masterpiece Cakeshop litigation on the basis they both seek exemptions to the same non-discrimination law that governs their business, the Colorado Anti-Discrimination Act, or CADA, and seek “to further the social and political argument that they should be free to refuse same-sex couples or LGBTQ people in particular.”
“So there’s the legal goal, and it connects to the social and political goals and in that sense, it’s the same as Masterpiece,” Pizer said. “And so there are multiple problems with it again, as a legal matter, but also as a social matter, because as with the religion argument, it flows from the idea that having something to do with us is endorsing us.”
One difference: the Masterpiece Cakeshop litigation stemmed from an act of refusal of service after owner, Jack Phillips, declined to make a custom-made wedding cake for a same-sex couple for their upcoming wedding. No act of discrimination in the past, however, is present in the 303 Creative case. The owner seeks to put on her website a disclaimer she won’t provide services for same-sex weddings, signaling an intent to discriminate against same-sex couples rather than having done so.
As such, expect issues of standing ā whether or not either party is personally aggrieved and able bring to a lawsuit ā to be hashed out in arguments as well as whether the litigation is ripe for review as justices consider the case. It’s not hard to see U.S. Chief Justice John Roberts, who has sought to lead the court to reach less sweeping decisions (sometimes successfully, and sometimes in the Dobbs case not successfully) to push for a decision along these lines.
Another key difference: The 303 Creative case hinges on the argument of freedom of speech as opposed to the two-fold argument of freedom of speech and freedom of religious exercise in the Masterpiece Cakeshop litigation. Although 303 Creative requested in its petition to the Supreme Court review of both issues of speech and religion, justices elected only to take up the issue of free speech in granting a writ of certiorari (or agreement to take up a case). Justices also declined to accept another question in the petition request of review of the 1990 precedent in Smith v. Employment Division, which concluded states can enforce neutral generally applicable laws on citizens with religious objections without violating the First Amendment.
Representing 303 Creative in the lawsuit is Alliance Defending Freedom, a law firm that has sought to undermine civil rights laws for LGBTQ people with litigation seeking exemptions based on the First Amendment, such as the Masterpiece Cakeshop case.
Kristen Waggoner, president of Alliance Defending Freedom, wrote in a Sept. 12 legal brief signed by her and other attorneys that a decision in favor of 303 Creative boils down to a clear-cut violation of the First Amendment.
“Colorado and the United States still contend that CADA only regulates sales transactions,” the brief says. “But their cases do not apply because they involve non-expressive activities: selling BBQ, firing employees, restricting school attendance, limiting club memberships, and providing room access. Coloradoās own cases agree that the government may not use public-accommodation laws to affect a commercial actorās speech.”
Pizer, however, pushed back strongly on the idea a decision in favor of 303 Creative would be as focused as Alliance Defending Freedom purports it would be, arguing it could open the door to widespread discrimination against LGBTQ people.
“One way to put it is art tends to be in the eye of the beholder,” Pizer said. “Is something of a craft, or is it art? I feel like I’m channeling Lily Tomlin. Remember ‘soup and art’? We have had an understanding that whether something is beautiful or not is not the determining factor about whether something is protected as artistic expression. There’s a legal test that recognizes if this is speech, whose speech is it, whose message is it? Would anyone who was hearing the speech or seeing the message understand it to be the message of the customer or of the merchants or craftsmen or business person?”
Despite the implications in the case for LGBTQ rights, 303 Creative may have supporters among LGBTQ people who consider themselves proponents of free speech.
One joint friend-of-the-court brief before the Supreme Court, written by Dale Carpenter, a law professor at Southern Methodist University who’s written in favor of LGBTQ rights, and Eugene Volokh, a First Amendment legal scholar at the University of California, Los Angeles, argues the case is an opportunity to affirm the First Amendment applies to goods and services that are uniquely expressive.
“Distinguishing expressive from non-expressive products in some contexts might be hard, but the Tenth Circuit agreed that Smithās product does not present a hard case,” the brief says. “Yet that court (and Colorado) declined to recognize any exemption for products constituting speech. The Tenth Circuit has effectively recognized a state interest in subjecting the creation of speech itself to antidiscrimination laws.”
Oral arguments in the case aren’t yet set, but may be announced soon. Set to defend the state of Colorado and enforcement of its non-discrimination law in the case is Colorado Solicitor General Eric Reuel Olson. Just this week, the U.S. Supreme Court announced it would grant the request to the U.S. solicitor general to present arguments before the justices on behalf of the Biden administration.
With a 6-3 conservative majority on the court that has recently scrapped the super-precedent guaranteeing the right to abortion, supporters of LGBTQ rights may think the outcome of the case is all but lost, especially amid widespread fears same-sex marriage would be next on the chopping block. After the U.S. Tenth Circuit Court of Appeals ruled against 303 Creative in the lawsuit, the simple action by the Supreme Court to grant review in the lawsuit suggests they are primed to issue a reversal and rule in favor of the company.
Pizer, acknowledging the call to action issued by LGBTQ groups in the aftermath of the Dobbs decision, conceded the current Supreme Court issuing the ruling in this case is “a terrifying prospect,” but cautioned the issue isn’t so much the makeup of the court but whether or not justices will continue down the path of abolishing case law.
“I think the question that we’re facing with respect to all of the cases or at least many of the cases that are in front of the court right now, is whether this court is going to continue on this radical sort of wrecking ball to the edifice of settled law and seemingly a goal of setting up whole new structures of what our basic legal principles are going to be. Are we going to have another term of that?” Pizer said. “And if so, that’s terrifying.”
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Kelley Robinson, a Black, queer woman, named president of Human Rights Campaign
Progressive activist a veteran of Planned Parenthood Action Fund
Kelley Robinson, a Black, queer woman and veteran of Planned Parenthood Action Fund, is to become the next president of the Human Rights Campaign, the nation’s leading LGBTQ group announced on Tuesday.
Robinson is set to become the ninth president of the Human Rights Campaign after having served as executive director of Planned Parenthood Action Fund and more than 12 years of experience as a leader in the progressive movement. She’ll be the first Black, queer woman to serve in that role.
āIām honored and ready to lead HRC ā and our more than three million member-advocates ā as we continue working to achieve equality and liberation for all Lesbian, Gay, Bisexual, Transgender, and Queer people,ā Robinson said. āThis is a pivotal moment in our movement for equality for LGBTQ+ people. We, particularly our trans and BIPOC communities, are quite literally in the fight for our lives and facing unprecedented threats that seek to destroy us.”
The next Human Rights Campaign president is named as Democrats are performing well in polls in the mid-term elections after the U.S. Supreme Court overturned Roe v. Wade, leaving an opening for the LGBTQ group to play a key role amid fears LGBTQ rights are next on the chopping block.
“The overturning of Roe v. Wade reminds us we are just one Supreme Court decision away from losing fundamental freedoms including the freedom to marry, voting rights, and privacy,” Robinson said. “We are facing a generational opportunity to rise to these challenges and create real, sustainable change. I believe that working together this change is possible right now. This next chapter of the Human Rights Campaign is about getting to freedom and liberation without any exceptions ā and today I am making a promise and commitment to carry this work forward.ā
The Human Rights Campaign announces its next president after a nearly year-long search process after the board of directors terminated its former president Alphonso David when he was ensnared in the sexual misconduct scandal that led former New York Gov. Andrew Cuomo to resign. David has denied wrongdoing and filed a lawsuit against the LGBTQ group alleging racial discrimination.