WASHINGTON — The Trump administration can enforce its ban on transgender service members while cases challenging the ban proceed, the Supreme Court announced Tuesday morning.
The court did not agree to hear arguments over the constitutionality of the Trump administration's efforts to ban most transgender people from serving in the military at this time — allowing appeals at the lower court level to continue. The court did, however, issue a stay of lower courts' injunctions against the policy — allowing the policy to be enforced — until challenges to the policy are resolved.
The 5–4 vote to grant the stay was opposed by all of the court's more liberal justices.
Until recently, all courts to consider the question had ruled against the actions of President Donald Trump and, later, former defense secretary James Mattis to first outright ban and then severely limit transgender military service. On Jan. 3, however, the US Court of Appeals for the DC Circuit reversed a district court's injunction against the Mattis policy.
That ruling — while a setback for advocates of transgender military service — had no immediate effect due to the multiple other injunctions against the policy.
Tuesday's order, however, put stays in place halting enforcement of two of the other injunctions — setting the stage for enforcement of the ban for the first time since Trump tweeted his plans in the summer of 2017. Transgender people had been allowed to serve since an Obama administration decision in 2016, and transgender people have been allowed to join the military since the beginning of 2018.
The Defense Department noted that one injunction — issued against Trump's initial ban from a district court in Maryland — remains in place and would mean that the ban would not be implemented immediately. The Justice Department is expected to go to court in short order, however, seeking to have that injunction stayed in light of the Supreme Court's actions on Tuesday.
The initial policy put forward by Trump was an outright ban, and multiple courts ruled that that policy was likely unconstitutional. The revised policy, at issue now, was put forward by Mattis and barred most transgender people from service if they transition. Its only exception was for those people already serving consistent with the prior policy allowing for open transgender service.
While most courts that have ruled on the revised policy have found that the two policies are not substantially different, the DC Circuit disagreed — finding the differences to be "substantial" and that the second was an attempt to address the legal failings of the initial policy.
The Pentagon echoed that view in its initial response to Tuesday's order from the court.
"As always, we treat all transgender persons with respect and dignity. DoD's proposed policy is NOT a ban on service by transgender persons," Pentagon spokesperson Lt. Col. Carla Gleason said in a statement. "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."
Lawyers challenging the policy have argued in court — and continued pressing on Tuesday — the reality that the Mattis policy would bar virtually all transgender people from joining the military going forward.
"DOD’s proposed policy bars transgender people from enlisting or serving in our nation’s armed forces. The only exception is for transgender servicemembers who have already come out in reliance on the open service policy established by Secretary Carter in 2016. The notion that such a ban treats transgender people 'with respect and dignity' is a contradiction in terms," Shannon Minter, an attorney with the National Center for Lesbian Rights representing some of those challenging the policy, told BuzzFeed News.
"The fact that the DOD proposed policy permits transgender people who have already come out to continue to serve shows very clearly that the proposed DOD policy is not based on military readiness, but on irrational bias against transgender people," Minter continued. "It is shameful that the Trump administration is subjecting our nation’s military to such a toxic, destabilizing policy that serves no purpose other than to weaken existing forces and stigmatize dedicated transgender troops."
In its initial statement, the Justice Department went even further than the Pentagon, taking aim at the injunctions by asserting that they forced the military to keep in place a policy "that poses a risk to military effectiveness and lethality."
DOJ spokesperson Kerri Kupec said in the statement: “We are pleased the Supreme Court granted stays in these cases, clearing the way for the policy to go into effect while litigation continues. The Department of Defense has the authority to create and implement personnel policies it has determined are necessary to best defend our nation. Due to lower courts issuing nationwide injunctions, our military had been forced to maintain a prior policy that poses a risk to military effectiveness and lethality for over a year. We will continue to defend in the courts the authority and ability of the Pentagon to ensure the safety and security of the American people.”
The decision to allow transgender service in 2016 was the result of an extensive Pentagon review that concluded the opposite and allowed for open transgender service.