The US Supreme Court is meeting today behind closed doors to weigh a request from the Trump administration to immediately reinstate a ban on transgender individuals serving in the military.
The Court has many options for proceeding. According to the Palm Center, a San Francisco gay rights organization, the justices could:
make no decision, and defer any action until a later date.
refuse the government’s request to hear the its case, and also decline to lift the current injunctions that have kept the ban from going into effect.
agree to hear the government’s case, but keep the injunctions that have stopped the ban
decline to hear the government’s case, but leave the injunctions — which would allow the ban to go into effect, but would not require the military to reinstate it, as President Trump gave the Department of Defense discretion in implementing the policy.
The Palm Center estimates that 14,700 transgender troops serve in the Active Component and Reserves.
However, the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates & Defenders (GLAD) filed suit (Doe v. Trump) challenging the ban in August 2017, so it has never gone into effect.
Two other challenges were subsequently filed (Karnoski v. Trump and Stockman v. Trump), and all three have been upheld by lower courts, resulting in preliminary injunctions that put a stop to the ban while the cases proceeded.
Meanwhile, the Trump Administration in November submitted a request — a petition for certiorari before judgment — to the Supreme Court asking them to bypass the federal appeals courts and instead immediately take up the three cases and render a decision this term.
“But petitions for certiorari before judgment are not granted often,” writes Amy Howe, a Supreme Court-watcher who writes for Scotusblog, in a December 13 post.
It was not surprising, said Howe, that the US Solicitor General went back to the Court in mid-December and suggested another possibility to the justices — that they could let the government enforce the ban while litigation in the lower courts continued.
The government has argued that the ban should go into effect immediately because the presence of transgender troops harms the military‘s readiness and fighting strength.
“The administration is gas lighting,” Aaron Belkin, PhD, director of the Palm Center, told Medscape Medical News. “It’s the reinstatement of the ban that would harm the military.”
“Six former U.S. Surgeons General, three former military Surgeons General, the American Medical Association, the American Psychological Association, and the American Psychiatric Association have confirmed that the Defense Department’s stated rationale for reinstating the ban is not supported by evidence and does not withstand scrutiny,” said Belkin in October, when Brett Kavanaugh was confirmed as the newest justice.
DC Appeals Court Backs Ban
On January 4, the US District Court of Appeals for the DC Circuit issued an opinion that found that the lower court erred in not allowing the 2018 directive — the “Mattis plan” — to go forward.
That policy did not constitute a complete ban on transgender individuals serving in the military, said the appeals court judges. Therefore, they said, “we think that the public interest weighs in favor of dissolving the injunction,” against the implementation of the ban.
The case is being sent back to the US District court for another look at the merits of the ban and the challenge.
Activists expressed deep concern about the Appeals Court ruling.
“We will keep fighting this cruel and irrational policy, which serves no purpose other than to weaken the military and punish transgender service members for their patriotism and service,” said NCLR Legal Director Shannon Minter in a statement.
“The court incorrectly believes that an implementation plan produced by former Defense Secretary James Mattis is different from President Trump’s original tweeted policy. The court is wrong. The President’s tweets and the Mattis ban are the same,” said Lieutenant General Claudia Kennedy, US (Retired), Rear Admiral John Hutson, JAGC, USN (Retired), Major General Gale Pollock, CRNA, FACHE, FAAN, US (Retired), and Brigadier General Clara Adams-Ender, USA (Retired), in a joint statement issued by the Palm Center.
The retired military officials said the ban’s stated rationale that allowing transgender individuals to serve would harm unit cohesion “was discredited by the Chiefs of Staff, all of whom stated that there have not been any problems with transgender service.”
Finally, the medical rationale — that there is ” ‘considerable scientific uncertainty’ about the effectiveness of medical care for gender dysphoria — has been repudiated by the American Medical Association, American Psychiatric Association, American Psychological Association, six former US Surgeons General, and three former military Surgeons General,” said the officers.
“The rationale for the Mattis ban and the Trump tweets is the same —politics, not military expertise — and courts should not be deferring to it,” they said.