The U.S. Supreme Court on Tuesday issued stays on lower court orders against President Trump’s transgender military ban, essentially giving a green light to allow the policy to go into effect.
In orders from the court, the Supreme Court granted stays the U.S. Justice Department requested in two separate cases challenging the ban before the U.S. Ninth Circuit Court of Appeals, Karnoski v. Trump and Stockman v. Trump. The stays mean Trump’s policy against transgender service will be allowed to go into effect as litigation moves forward.
The orders note U.S. Associate Justice Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan would have denied the application for a stay. (Since at least five justices are required for the Supreme Court to grant a stay, the order suggests Chief Justice John Roberts as well as U.S. Associate Justices Samuel Alito, Brett Kavanaugh, Neil Gorsuch and Clarence Thomas agreed to grant the stay.)
In a separate entry, the orders note the Supreme Court also rejected petitions for certiorari from the U.S. Justice Department calling for the Supreme Court to review these cases even before the Ninth Circuit had rendered a decision. It would have been a rare move for the Supreme Court to grant the cases at this stage without decisions yet from the appellate courts.
Shannon Minter, legal director for the National Center for Lesbian Rights, said the interpretation of the orders to mean Trump’s policy can go into effect is “unfortunately” correct.
“The court declined to hear the cases now, which permits our challenges to proceed in the lower courts, but it also is allowing the Trump administration to enforce the ban in the meantime,” Minter said.
But Minter added the Supreme Court’s stay order is “only temporary and is in place only until the Ninth Circuit issues its decision and the Court decides whether to accept review of that case.”
At the start of the year, four court orders were in place barring the Trump administration from enforcing the transgender military ban. All that has changed with the Supreme Court orders.
The Supreme Court grants the stay weeks after the D.C. Circuit Court of Appeals issued its own order lifting a lower court stay against the transgender military ban, which reduced the number of orders to three.
Technically, another order against the transgender military ban issued by a federal court in Maryland still stands, but it’s hard to see how that will be the case for long given the Supreme Court orders lifting orders in two other cases.
Sharon McGowan, legal director for Lambda Legal, pointed out the Maryland court order against the ban is in a precarious position.
“As a technical matter, there is still one remaining nationwide injunction in place – the ACLU’s injunction in the Maryland case (Stone),” McGowan said. “But we suspect that DOJ will likely be back in federal court in Maryland renewing their motion for a stay in light of what SCOTUS issued this morning.”
A Defense Department official noted one court injunction against the transgender military ban remains in effect, thus “nothing would change today.”
The Justice Department didn’t immediately respond to the Washington Blade’s request to comment on the next steps in the aftermath of the Supreme Court orders.
If the transgender military ban as developed by former Defense Secretary James Mattis is implemented, the change won’t affect transgender people currently in the armed forces.
The Mattis plan allows transgender service members who are already serving openly to continue to do so, and to receive necessary medical care. However, the plan prohibits openly transgender people from enlisting in the armed forces, and service members who later come out as transgender are at risk of discharge and ineligible for treatment.
Lt. Col. Carla Gleason, a spokesperson for the Defense Department, said the Pentagon is “pleased” with the order from the Supreme Court and denied the Trump policy is a ban.
“We will continue to work with the Department of Justice regarding next steps in the pending lawsuits,” Gleason said. “As always, we treat all transgender persons with respect and dignity. 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 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.”
According to the Williams Institute at the University of California, Los Angeles, an estimated 15,500 transgender people are currently serving in the U.S. military. A 2016 RAND Corp. study came up with a smaller number, estimating between 1,320 to 6,630 are currently in the active duty component of the armed forces.
Laura Durso, vice president of the LGBT Research & Communications Project at the Center for American Progress, condemned the Supreme Court for allowing the transgender military ban to go into effect.
“Allowing this dehumanizing policy to remain intact for even one more day gives credence to a bogus rationale about the fitness of transgender people to serve their country,” Durso said. “This is the cruel centerpiece of the Trump administration’s agenda to prevent the full inclusion of transgender people in public life. It undermines military readiness and perpetuates the fear across the transgender and allied communities that this government will not protect them, not even those who would sacrifice everything to protect our nation.”
Also criticizing the Supreme Court for allowing the transgender military ban to go into effect was Mara Keisling, executive director of the National Center for Transgender Equality.
“The court’s extraordinary action today puts the honorable service of thousands of troops and military readiness on the line,” Keisling said. “The military sets a core standard of unity and acceptance for American society, with implications extending far past military bases and recruitment offices, and that is the goal of the Trump-Pence administration. Today’s action is an attack on transgender people around the nation. President Trump’s attempts to defend this ban are as farcical as ever and only serve to defame thousands of transgender troops. 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.”
Democratic National Committee Chair Tom Perez rebuked Trump’s ban in the aftermath of the Supreme Court orders.
“Prejudice is not patriotism,” Perez said. “Discrimination is not a national security strategy. This ban is nothing more than bigotry codified into law and an insult to all who have worn our nation’s uniform. Not only does it go against our values as Americans, it also makes us less safe.”
Perez also said the Democratic Party would fight the anti-trans policy upon its implementation.
“Democrats believe diversity is our nation’s strength,” Perez said. “We believe everyone deserves to be treated with dignity and respect, no matter who you love or how you identify. The brave service members who defend our freedoms should be able live freely. And we will keep fighting for the transgender community and all those who put themselves in harm’s way to protect our country.”