The Trump administration is bypassing lower courts and asking the Supreme Court to uphold its ban on military service by transgender people.
Solicitor General Noel Francisco filed petitions with the court Friday asking it to review three lawsuits against the ban in which federal courts have issued preliminary injunctions keeping the policy from going into effect while the cases are heard.
The petitions come in the cases Doe v. Trump, Stockman v. Trump, and Karnoski v. Trump, filed by current and aspiring military members who are transgender. The first one is pending before the U.S. Court of Appeals for the District of Columbia Circuit, the other two before the Ninth Circuit. They bypass the usual procedure of a federal district court, then an appeals court, ruling on cases before either party appeals to the Supreme Court.
In the briefs, Francisco argues “that the dispute requires the justices’ immediate attention because the ‘prior policy’ of allowing transgender individuals to serve ‘posed too great a risk to military effectiveness and lethality’: The government can’t afford to keep the old policy in place for a year while it waits for the courts of appeals to issue their rulings and then appeals to the Supreme Court,” SCOTUSBlog reports.
The “prior policy” to which the briefs refer was issued by Secretary of Defense Ash Carter in 2016, while Barack Obama was president, declaring that after intensive study, military leaders had decided that being transgender was no impediment to military service, reversing an anti-trans policy that had been in place for decades. The policy announced by Carter allowed closeted trans people currently serving to be open about their identity without fear of discharge, and allowed for eventual enlistment by out trans people.
After Donald Trump became president, Defense Secretary James Mattis delayed enlistment of trans troops, and then, in July 2017, Trump sent his infamous tweet announcing the blanket trans military ban. Civil rights groups quickly sued to block the ban and found support in federal courts. The Trump administration stood by the ban, issuing a memo in March arguing that trans people are unfit to serve in the armed forces unless they agree to do so in the gender they were assigned at birth.
Whether the Supreme Court will decide to hear the cases is an open question. For the court to take a case, at least four of the nine justices must agree to do so, the Washington Blade notes.
LGBTQ rights groups immediately announced their opposition to the solicitor general’s action. “If the Supreme Court were to grant the administration’s request, it would consider this term whether to lift the injunction while the cases proceed in the lower courts,” said a press release from the National Center for Lesbian Rights and GLBTQ Legal Advocates and Defenders, which represent the plaintiffs in Doe and Stockman. “Excluding transgender people who meet military standards undermines readiness and would dramatically upend the lives and families of thousands of trans servicemembers and enlistees, and disrupt the military as a whole.”
“There is no urgency here and no reason for the xourt to weigh in at this juncture,” Jennifer Levi, GLAD transgender rights project director, said in the release. “The 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.”
“The gat 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,” added NCLR legal director Shannon Minter. “Allowing President Trump’s ban to be implemented would upend thousands of lives and weaken our armed forces.”
“There are thousands of transgender service members bravely serving the nation with distinction,” said Rick Zbur, executive director of Equality California, which is a plaintiff the Stockman case on behalf its members. “The administration ought to be thanking them for their service — not trying to score political points by purging them from our military.”
Lambda Legal and OutServe-SLDN, representing plaintiffs in Karnoski, likewise denounced the move. “This 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,” Lambda Legal senior counsel Peter Renn said in a press release. “It seems the Trump administration can’t 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.”
“The Trump-Pence administration's desperate desire to discriminate against transgender service members knows no bounds,” said a statement issued by Sarah McBride, national press secretary for the Human Rights Campaign, which has joined trans military members as a plaintiff in the Karnoski case. ”The administration is in a rush because they know that every day that transgender people continue to enlist and serve with distinction is another day that the courts and the public see this irrational policy for what it is. There is simply no reason to circumvent the traditional judicial process in pursuit of banning qualified, patriotic Americans from serving their country, and we thank Lambda Legal and OutServe-SLDN for their representation in this critical case.”
Another condemnatory statement came from Mara Keisling, executive director of the National Center for Transgender Equality: “This is yet another reckless move by a president with zero respect for this nation’s military or the rule of law. Coming the day after the president turned a Thanksgiving message to troops into a complaint about his own losses in federal court, it is clear the administration is growing ever more desperate to undermine the law and insert prejudice and hate into our armed forces. It's a senseless move that can only serve to disrupt troops, their families, and the military itself. Transgender people serve our country with honor and dignity. There is no excuse for the administration’s continued defense of this dangerous policy.”
And Democratic National Committee chair Tom Perez, secretary Jason Rae, and LGBTQ Caucus chair Earl Fowlkes released this statement: “This ban goes against our values as a nation and has already been struck down by several lower courts. But now the Trump administration wants to bypass those courts in an effort to discriminate against the brave transgender troops serving our country. We are confident that the appellate court would follow the lower courts and side with the rule of law. Around the world, transgender service members are separated from their families in order to serve our country. Those who put their lives on the line and defend our right to live freely should be able to serve freely.”