The Trump administration can begin enforcing its policy restricting many transgender people from serving in the military while legal challenges proceed through the lower courts, the Supreme Court said Tuesday.
The court voted 5-4 to grant Justice Department requests to put on hold lower court orders that blocked the Trump administration from allowing the transgender military ban to take effect nationwide.
The court split along ideological lines, with justices appointed by Democratic presidents voting to deny the Trump administration’s application to halt the lower court rulings — Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
President Trump announced on Twitter in July 2017 that transgender troops would not be permitted to serve in the military in any capacity, and subsequently issued an order barring most transgender people from military service.
The move by Trump was a reversal of a policy under President Barack Obama’s administration to allow transgender people to openly serve.
Former Secretary of Defense Jim Mattis, who left the Trump administration last month, then devised a new policy last year allowing roughly 1,000 transgender troops to remain in the military. The policy, however, prohibited new enlistees diagnosed with gender dysphoria or who have had gender reassignment surgery.
The policy was swiftly challenged by transgender troops and LGBT rights organizations, which have been successful in the lower courts.
The legal challenges are currently proceeding before the 9th U.S. Circuit Court of Appeals.
Peter Renn, counsel for Lambda Legal, which filed one of the lawsuits, called the Supreme Court’s action “perplexing to say the least: on the one hand denying the Trump administration’s premature request for review of lower court rulings before appellate courts have ruled and rebuffing the administration’s attempt to skirt established rules; and yet on the other allowing the administration to begin to discriminate, at least for now, as the litigation plays out.”
“For more than 30 months, transgender troops have been serving our country openly with valor and distinction, but now the rug has been ripped out from under them, once again,” Renn said. “We will redouble our efforts to send this discriminatory ban to the trash heap of history where it belongs.”
The action from the Supreme Court comes after the Justice Department asked it in November to fast-track a ruling in the dispute over the transgender military service policy and bypass the federal appeals courts.
Then, in December, the administration asked the high court to let the policy take effect after federal district courts issued injunctions blocking implementation of the policy.
Solicitor General Noel Francisco wrote in a filing with the Supreme Court that the case “involves an issue of imperative public importance: the authority of the U.S. military to determine who may serve in the nation’s armed forces.”
The U.S. Court of Appeals for the District of Columbia Circuit — the first federal appeals court to consider the policy — sided with the Trump administration this month and lifted one of the injunctions.
The court said the policy from Mattis was not a “blanket ban” since “not all transgender persons seek to transition to their preferred gender or have gender dysphoria.”
