SUPREME Court ALLOWS TRANS Military BAN To Continue
The Supreme Court allowed President Donald Trump’s transgender military ban to go into effect on Tuesday, dealing a blow to LGBT activists who call the ban cruel and irrational.
The Justices did not rule on the merits of the case, but will allow the ban to go forward while the lower courts work through it.
The four liberal justices on the Court objected to allowing the administration’s policy banning most transgender people from serving in the military to go into effect.
The policy, first announced by the President in July 2017 via Twitter, and later officially released by then-Secretary of Defense James Mattis in 2018, blocks individuals who have been diagnosed with a condition known as gender dysphoria from serving with limited exceptions. It also specifies that individuals without the condition can serve, but only if they do so according to the sex they were assigned at birth.
In a statement released after the SCOTUS decision to allow the ban to go forward, the Pentagon sought to clarify that its policy is not a ban on all transgender persons from the military.
“As always, we treat all transgender persons with respect and dignity. (The Department of Defense’s) proposed policy is NOT a ban on service by transgender persons. It is critical that DoD be permitted to implement personnel policies that it determines are necessary to ensure the most lethal and combat effective fighting force in the world. DoD’s proposed policy is based on professional military judgment and will ensure that the U.S. Armed Forces remain the most lethal and combat effective fighting force in the world,” Lt. Col. Carla Gleason, a Pentagon spokesperson, told CNN..
In July 2017, Trump surprised military leaders by tweeting, “After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military,” Trump said. “Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.”
His tweets came less than a month into the six-month delay set by Mattis to review the US military’s policy on transgender service members.
The Pentagon was forced to allow transgender applicants to join the military on January 1, 2018, after a federal judge ruled that the military had to allow transgender recruits to join.
Challenges to the policy have had mixed success in the lower courts. Trial judges around the nation issued injunctions blocking it, and the United States Court of Appeals for the Ninth Circuit, in San Francisco, is expected to rule soon on whether to affirm one of them.
On Jan. 4, the United States Court of Appeals for the District of Columbia Circuit vacated a third injunction, that one issued by Judge Colleen Kollar-Kotelly, a federal trial judge in Washington. The appeals court said its ruling was “not a final determination on the merits.” But it handed the administration at least a provisional victory.
The Supreme Court granted stays of two other injunctions, issued by Federal District Court judges in California and Washington State, both in the Ninth Circuit.
Solicitor General Noel J. Francisco, representing the administration, had argued that the stays were needed to address a troubling phenomenon.
“It is with great reluctance that we seek such emergency relief in this court,” Mr. Francisco wrote. “Unfortunately, this case is part of a growing trend in which federal district courts, at the behest of particular plaintiffs, have issued nationwide injunctions, typically on a preliminary basis, against major policy initiatives.”
“Such injunctions previously were rare, but in recent years they have become routine,” he wrote. “In less than two years, federal courts have issued 25 of them, blocking a wide range of significant policies involving national security, national defense, immigration and domestic issues.”
Mr. Francisco did not ask the justices to address a separate injunction from a federal trial judge in Maryland, but the Supreme Court’s action on Tuesday will presumably cause lower courts to stay that one, too.
Advocates for transgender rights welcomed the court’s decision not to hear immediate appeals from trial court rulings blocking the policy.
“In declining to hear these cases, the Supreme Court saw through the administration’s contrived efforts to gin up a national crisis,” said Jennifer Levi, director of the Transgender Rights Project of GLBTQ Legal Advocates & Defenders.
“Unfortunately,” she added, “the court’s stay of the lower courts’ preliminary orders means that courageous transgender service members will face discharges while challenges to the ban go forward. The Trump administration’s cruel obsession with ridding our military of dedicated and capable service members because they happen to be transgender defies reason and cannot survive legal review.”
The Supreme Court’s rules say it will review a federal trial court’s ruling before an appeals court has spoken “only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this court.”
In a separate brief, Mr. Francisco wrote, “This case satisfies that standard.”
“It involves,” he wrote, “an issue of imperative public importance: the authority of the U.S. military to determine who may serve in the nation’s armed forces.”
He told the justices that prompt action was required to ensure that the Supreme Court could rule before its term ends in June. The alternative, he said, was to defer Supreme Court arguments in the matter to the term that starts in October, with a decision probably not coming until 2020.
But lawyers for current and prospective members of the military challenging the policy said there was no need to upend the status quo while the case proceeded.
“Transgender people have been serving openly in all branches of the United States military since June 2016, including on active duty in combat zones,” their brief said. “Transgender individuals have been permitted to enlist in the military since January 2018.”
“The government has presented no evidence that their doing so harms military readiness, effectiveness or lethality,” the brief said.
The hundreds of people grandfathered in under the new policy, the brief added, “cannot be squared with the government’s claims of urgency to eliminate all other transgender personnel.”
Shortly after the court’s order, Speaker of the House Nancy Pelosi tweeted that the policy was “purpose-built to humiliate brave men & women seeking to serve their country.”
“Deeply concerning that #SCOTUS is allowing his ban to proceed for now,” she continued.
The court’s move is a victory for the Trump administration. While government lawyers wanted the Court to take up the case, they also fought to allow the ban to go into effect while the case plays out in the lower courts.
“Today’s dual rulings on the transgender ban allow the controversial policy to go into effect for now, but also allow the appeals to go forward in the lower courts,” said Steve Vladeck, CNN Supreme Court analysis and professor of law at the University of Texas School of Law.
“The government had asked the Justices to take the issue up even before the appeals courts could rule. Even though the Court denied that request, the fact that the Court is allowing the policy to go into effect suggests not only that it will eventually take the case on the merits, but also that five of the Justices believe the government is likely to prevail if and when that happens,” Vladeck said.
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