Supreme Court Allows Military Transgender Ban to Continue—for Now

Trump, Transgenders, Military
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KEN KLUKOWSKI
Washington, DC

WASHINGTON, DC – The Supreme Court voted 5-4 on Tuesday to block lower court orders that had prevented President Donald Trump’s policy on transgender military troops from taking effect. The matter is now expected to go back before the justices for final judgment in the next year.

The Department of Justice (DOJ) has been litigating several cases regarding that transgender policy since 2017. Transgender individuals had never been able to serve in the U.S. military, but President Barack Obama declared he would change that policy during his final term. It was set to take effect after the next president – Donald Trump – assumed office.

President Trump decided to reverse Obama’s decision. Liberal groups and transgender individuals sued over that reversal, filing lawsuits in three liberal district courts. When those courts issued preliminary injunctions requiring the military to immediately accept all transgender troops, U.S. Solicitor General Noel Francisco took the rare step of going trying to bypass the appellate courts and go immediately to the U.S. Supreme Court.

The American Psychiatric Association’s current Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) has long categorized transsexuality as such a condition, first calling it “transsexualism,” then “gender identity disorder,” and most recently, “gender dysphoria.”

On July 26, 2017, President Trump announced that the U.S. military would generally continue its policy of not allowing transgender individuals to serve. DOD subsequently formulated a policy allowing some transgender individuals to serve, but that transgender individuals who would be unable to deploy on miss. This policy was implemented in October 2017.

Pursuant to subsequent orders from the commander-in-chief, then-Defense Secretary James Mattis recommended that transgender individuals cannot serve if their gender dysphoria requires in expensive gender reassignment surgery or other therapies that render them unable to serve for significant lengths of time. The specific military need is that those serving in uniform must be “free of medical conditions or physical defects that may require excessive time lost from duty.”

President Trump adopted that recommendation for a revised policy in March 2018. Federal judges in Washington State, California, and D.C. issued injunctions blocking the new policy – which again, actually merely preserved the decades-long policy – and the Trump administration appealed all three.

DOJ appealed all three of those decisions. On November 23, 2018, Francisco took the rare step of asking the Supreme Court to take those cases now (with what is called a petition for certiorari before judgment), rather than wait for perhaps another year for the U.S. Courts of Appeals for the Ninth Circuit and D.C. Circuit to issue decisions.

“To assemble a military of qualified, effective, and able-bodied persons, the Department of Defense [DOD] has traditionally set demanding standards for military service,” these petitions for certiorari explain. “Given the unique mental and emotional stresses of military service, a history of most mental health conditions and disorders is automatically disqualifying.”

While those petitions were pending, the D.C. Circuit handed down a 5-page decision on January 4, 2019, dissolving the preliminary injunction from the trial court in D.C. that had blocked the Trump-Mattis policy. The three-judge panel hearing the appeal reversed the lower court injunction said that they were issuing the order quickly, but would release a full-length opinion at a later date.

The Supreme Court on Tuesday denied the petitions for certiorari before judgment, but also granted a stay to block the lower courts’ injunctions against the Trump administration. Thus the current policy – which again is almost the same as the old policy – disallowing transgender troops will continue in force while this litigation plays out.

Normally the justices wait for one of the federal appeals courts renders a final judgment in one of those appeals, the losing party can petition the Supreme Court to review that decision. Because the ordinary cutoff for this annual term passed on January 18, any new cases will probably go the term that begins in October 2019, with a decision expected in 2020.

Now that the D.C. Circuit has issued a short decision, the justices may merely be waiting for the judges to release the full-length opinion accompanying that decision, and for the challengers to file an ordinary cert petition. The Supreme Court can then grant review of that decision, or it can wait for the other appellate courts to issue decisions in the appeals currently before them to see if a split develops on the issue before taking it up.

Either way, the current stays allow the Trump-Mattis policy to take effect now. The four liberal justices – Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan – would deny the applications for a stay, thereby compelling the U.S. military to accept all transgender troops immediately.

The petitions are Trump v. Karnoski, Trump v. Doe 2, and Trump v. Stockman, Nos. 18-676, 18-677, and 18-678 in the Supreme Court of the United States.

Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.

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