Photo: Staff Sgt. Teddy Wade, U.S. Army, via Wikimedia.
Several transgender service members are asking the Supreme Court to reject a request from the Trump administration to rule on several challenges to a Trump-proposed ban that would bar transgender people from joining or remaining in the Armed Forces.
The administration previously requested that the nation’s highest court take up the issue, raised in three separate lawsuits, of whether the Defense Department has the right to bar transgender people from serving because of their gender identity. Yet the administration’s request comes before any federal judge has ruled on the merits of the transgender plaintiffs’ challenges.
The administration has consistently argued that the presence of transgender service members in military units harms unit cohesion and hurts military readiness by making it harder for those units to deploy overseas due to the measures needed to be taken to accommodate transgender individuals.
The administration has also claimed that the so-called “Mattis Plan” released in March 2018 is substantially different from a broad-based categorgical ban, in that it allows transgender individuals to serve so long as they remain in and present as the gender they were assigned at birth, and have not been diagnosed with gender dysphoria.
But lawyers for the transgender service members suing the government in the D.C.-based Doe v. Trump, the California-based Stockman v. Trump, and the Washington State-based Karnoski v. Trump argue that the ban is discriminatory and violates transgender individuals’ constitutional rights.
Thus far, four separate federal courts have issued injunctions to stop the Department of Defense from implementing the ban and forcibly discharging transgender troops until the courts issue a final ruling. They have also ruled that the Mattis Plan is no different from Trump’s original proposed ban, thereby allowing the injunctions to remain in place.
The rulings to issue and keep in place the injunction are now being reviewed by the D.C. Circuit Court of Appeals and the 9th U.S. Circuit Court of Appeals.
GLBTQ Legal Advocates & Defenders and the National Center for Lesbian Rights, which represent the plaintiffs in the Doe and Stockman cases, argue that the administration’s request for Supreme Court review is premature, and that it has demonstrated no justification for bypassing the normal appeals process.
“The Trump administration’s relentless attacks on transgender troops, including those who are currently deployed overseas, are appalling and legally baseless,” Shannon Minter, NCLR’s legal director, said in a statement. “The Trump administration has demonstrated no urgency that would justify leapfrogging the normal appellate process, and the military’s own account shows no problems that need to be addressed. By the military’s own account, inclusion of transgender service members makes our military stronger.”
“The Trump administration is trying to do an end run around the normal review process in order to implement a cruel and baseless ban that destabilizes and weakens our military,” Jennifer Levi, the director of GLAD’s Transgender Rights Project, added. “At this moment when it is more important than ever to maintain the strength of core American institutions, it is vital that the Supreme Court maintain the integrity of the judicial process and deny the government’s request.”
If the Supreme Court agrees to grant the government’s request, it would hear the cases this term. The administration has also asked the court to allow the ban to go into effect right away, even if the court declines to hear the cases. The plaintiffs’ lawyers in the Doe and Stockman cases are expected to file a motion on Dec. 28 explaining why the court should reject that request as well.
Lambda Legal and OutServe-SLDN, which are representing the plaintiffs in the Karnoski case, are also asking the high court to reject the administration’s request to hear the case during the upcoming term.
“There is no valid reason for the Trump-Pence administration to try to short-circuit established practice and ask for review before the federal Courts of Appeal have even had an opportunity to rule,” Lambda Legal Counsel Peter Renn said in a statement. “It is mystifying why the Trump-Pence administration is suddenly so desperate to kick out transgender service members when it’s been already five months since the Ninth Circuit Court of Appeals denied an earlier stay request.
“Moreover, since transgender troops were able to serve openly starting two-and-a-half years ago, there has been no diminution of readiness, no disruption of unit cohesion,” Renn added. “In fact, leaders of all branches of the U.S. Armed Services have testified that the implementation of open service has occurred smoothly and without incident. It is clear, notwithstanding the ginned-up rationalizations, that rank bigotry remains the only justification for the discriminatory ban, and the Court should allow the appellate courts to rule on the issues through the ordinary course.”