With court injunctions in place barring President Trump’s transgender military ban from going into effect, the Trump administration on Thursday submitted requests to the U.S. Supreme Court calling for a stay allowing the anti-trans policy to take effect immediately.
The filings — which call transgender military service “contrary to the nation’s interests” — were made in three separate cases against the ban. In each of those cases, trial courts have already issued preliminary injunctions enjoining Trump’s policy from going into effect. Two appellate courts have upheld those injunctions upon review, although those orders are now under reconsideration in the aftermath of Defense Secretary James Mattis’ report affirming the ban.
U.S. Solicitor General Noel Francisco filed the stay requests before the Supreme Court on the heels of submitting petitions for certiorari calling on justices to take up review of the cases before the appellate courts have rendered their decision on reconsideration of the orders. It would be an unusual move for the Supreme Court to issue a writ of certiorari, or agree to take up a case, at this stage in the litigation.
Each of the filings in all three cases are virtually identical and make the case the Supreme Court should lift the injunctions in the cases and allow the ban to go into effect “as an alternative to certiorari before judgment.”
“Should the court deny certiorari before judgment…a decision by the court this term would no longer be possible,” one petition says. “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 until next term. Absent a stay, the nationwide injunction would thus remain in place for at least another year and likely well into 2020 — a period too long for the military to be forced to maintain a policy that it has determined, in its professional judgment, to be contrary to the nation’s interests.”
Alternatively, the filings request a reduction in scope of the nationwide injunctions against the ban merely to the transgender plaintiffs represented in the lawsuits. That would allow the Defense Department, as noted by one filing to “implement the Mattis policy in part while litigation proceeds through 2019 and into 2020.”
The filings also express “great reluctance” over having to seek an emergency stay to lift nationwide injunctions against the trans ban, saying those orders with nationwide scope are becoming increasingly common within the judiciary.
“Unfortunately this case is part of a growing trend in which federal district courts, at the behest of particular plaintiffs, have issued nationwide injunctions, typically on a preliminary basis, against major policy initiatives,” one filing says. “Such injunctions previously were rare, but in recent years they have become routine.”
It should be noted the Trump administration has taken advantage of nationwide injunctions in favor of anti-LGBT policy. The administration dropped an appeal of an order against the implementation of Obama-era guidance requiring schools to allow kids to use the restroom consistent with their gender identity and declined to appeal another order assuring non-discrimination for transgender people in health care, including transition-related care such as gender reassignment surgery. Both those orders were issued by U.S. District Judge Reed O’Connor in Texas.
The filings for two of the cases were submitted to U.S. Associate Justice Elena Kagan, who’s responsible for stay requests in the Ninth Circuit. The other was submitted to U.S. Chief Justice John Roberts, who’s responsible for stay requests in the D.C. Circuit. Elena and Roberts could decide on the stay requests assigned to them themselves, or refer the matter to the entire court, where a majority vote of at least five justices would be needed to grant a stay.
Shannon Minter, legal director for the National Center for Lesbian Rights, said the Trump administration filings are “appalling and legally baseless,” pointing to a previous decision from the Justice Department not to seek stays from the Supreme Court on court orders against Trump’s military ban.
“The government does not even attempt to explain why it has failed to seek a stay in the past or why there is any genuine urgency in doing so now,” Minter said. “By the military’s own account, there have been no problems with transgender service members and they have produced zero evidence of any problems. Their desire to implement Trump’s ban is based on pure bias.”
Minter added the stay requests are “an insult to the thousands of dedicated transgender people who are currently serving and willing to make the ultimate sacrifice for their country if called on to do so.”
“Basing military policy on animus toward a particular group of people sets a terrible precedent that undermines the integrity of military decision making,” Minter said. “There is no legal basis for a stay, and we are hopeful this belated and unsupported motion will be speedily denied.”