The U.S. Supreme Court on Tuesday issued stays on lower court orders against President Trump's transgender military ban, apparently allowing the policy to go into effect.
In orders from the court, the Supreme Court granted stays the U.S. Justice Department requested in two separate cases challenging the ban before the U.S. Ninth Circuit Court of Appeals, Karnoski v. Trump and Stockman v. Trump. The stays means the Trump's policy against transgender service will be allowed to go into effect as litigation moves forward.
The orders note U.S. Associate Justice Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan would have denied the application for a stay. (Since at least five justices are required for the Supreme Court to grant a stay, the order suggests Chief Justice John Roberts as well as U.S. Associate Justices Samuel Alito, Brett Kavanaugh, Neil Gorsuch and Clarence Thomas agree to grant the stay.)
Shanon Minter, legal director for the National Center for Lesbian Rights, said the interpretation of the orders to mean Trump's policy can go into effect is "unfortunately" correct.
"The court declined to hear the cases now, which permits our challenges to proceed in the lower courts, but it also is allowing the Trump administration to enforce the ban in the meantime," Minter said.
But Minter added the Supreme Court's stay order is "only temporary and is in place only until the Ninth Circuit issues its decision and the Court decides whether to accept review of that case."
Also pending before the court were petitions for certiorari calling for the Supreme Court to review in these cases even before the Ninth Circuit had rendered a decision. It would be a rare move for the Supreme Court to grant the cases at this stage without decisions yet from the appellate courts.
The orders note the court has yet to take action on those petitions, but if the court eventually agrees to grant a writ of certiorari and hear the cases, the stays will "terminate when the court enters its judgment."
At the start of the year, four court orders were in place barring the Trump administration from enforcing the transgender military ban. All that has changed with the Supreme Court orders.
The Supreme Court grants the stay weeks after the D.C. Circuit Court of Appeals issued its own order lifting a lower court stay against the transgender military ban, which reduced the number of orders to three.
Technically, another order against the transgender military ban issued by a federal court in Maryland still stands, but it's hard to see how that will be the case for long given the Supreme Court orders lifting orders in two other cases.
Sharon McGowan, legal director for Lambda Legal, pointed out the Maryland court order against the ban is in a precarious position.
"As a technical matter, there is still one remaining nationwide injunction in place – the ACLU's injunction in the Maryland case (Stone)," McGowan said. "But we suspect that DOJ will likely be back in federal court in Maryland renewing their motion for a stay in light of what SCOTUS issued this morning."
The Justice Department didn't immediately respond to the Washington Blade's request to comment on what the Supreme Court orders mean for implementation of the transgender military ban.
Laura Durso, vice president of the LGBT Research and Communications Project at the Center for American Progress, condemned the Supreme Court for allowing the transgender military ban to go into effect.
"Allowing this dehumanizing policy to remain intact for even one more day gives credence to a bogus rationale about the fitness of transgender people to serve their country," Durso said. "This is the cruel centerpiece of the Trump administration's agenda to prevent the full inclusion of transgender people in public life. It undermines military readiness and perpetuates the fear across the transgender and allied communities that this government will not protect them, not even those who would sacrifice everything to protect our nation."
This article originally appeared in the Washington Blade and is made available in partnership with the National Gay Media Association.
