With court orders in place from four judges barring the U.S. military from enacting President Trump’s transgender ban, the Trump administration is seeking recourse from the U.S. Supreme Court to allow the policy to go into effect.
On Friday, U.S. Solicitor General Neil Francisco submitted petitions for certiorari in threecases calling on the court to review the litigation and reverse the preliminary injunctions enjoining enforcement of Trump’s transgender ban.
“In arriving at that new policy, Secretary Mattis and a panel of senior military leaders and other experts determined that the prior policy, adopted by Secretary Carter, posed too great a risk to military effectiveness and lethality,” Francisco writes. “As a result of nationwide preliminary injunctions issued by various district courts, however, the military has been forced to maintain that prior policy for nearly a year. And absent this court’s prompt intervention, it is unlikely that the military will be able to implement its new policy any time soon.”
The petitions from the solicitor general were expected. In two cases challenging Trump’s ban, the U.S. Justice Department submitted letters to lower federal appeals courts calling for expedited rulings, saying the Trump administration wanted to file a petition by Nov. 23 so justices could hear the case in their current term.
Francisco echoes that sense of urgency in his request to the court. In one petition, the solicitor general writes Supreme Court review is “warranted to ensure that the injunction does not remain in place any longer than is necessary.”
“Even if the government were immediately to seek certiorari from an adverse decision of the court of appeals, this court would not be able to review that decision in the ordinary course until next term at the earliest,” Francisco writes. “In the interim, the military would be forced nationwide to maintain the Carter policy — a policy that the military has concluded poses a threat to ‘readiness, good order and discipline, sound leadership, and unit cohesion,’ which ‘are essential to military effectiveness and lethality.’”
Francisco also writes the Supreme Court should take up the cases to resolve the issue of whether banning transgender people from the military amounts to violation of equal protection under the U.S. Constitution.
The solicitor general sent the petitions to the Supreme Court with respect to the injunctions issued in three cases. Two — Karnoski v. Trump and Stockman v. Trump — are pending before the U.S. Ninth Circuit Court of Appeals and one — Doe v. Trump — is before the D.C. Circuit Court of Appeals.
Jennifer Levi, the transgender rights project director for GLBTQ Advocates & Defenders and lead attorney in the Stockman and Doe cases, said in a statement the Supreme Court should resist taking up the transgender military cases.
“There is no urgency here and no reason for the court to weigh in at this juncture,” Levi said. “The injunctions preserve the status quo of the open service policy that was thoroughly vetted by the military itself and has been in place now for more than two years. This is simply one more attempt by a reckless Trump administration to push through a discriminatory policy. The policy flies in the face of military research and dozens of top military experts.”
In the Ninth Circuit, a three-judge panel heard oral augments on Oct. 10 in the case of Karnoski v. Trump — which was filed by Lambda Legal and OutServe-SLDN — on whether to lift the injunction in the lawsuit, but has yet to render an opinion. Oral arguments are scheduled Dec. 10 before the D.C. Circuit Court of Appeals in the case of Doe v. Trump, which was filed by the National Center for Lesbian Rights and GLBTQ Advocates & Defenders. Stockman v. Trump, which was filed by Equality California, is also pending before the Ninth Circuit.
Rick Zbur, executive director of Equality California, said in a statement the timing of the petitions during the Thanksgiving holiday speaks volumes about the values of the Trump administration.
“As Americans come together and give thanks for the sacrifices made by our brave service members and their families, the Trump-Pence Administration is focused on undermining our military by tripling down on this discriminatory ban,” Zbur said. “There are thousands of transgender service members bravely serving the nation with distinction. The administration ought to be thanking them for their service — not trying to score political points by purging them from our military.”
After tweeting in July 2017 he’d ban transgender Trump issued the order, Trump issued an order in October 2017 directing the Pentagon to implement the policy. Months later in February 2018, Defense Secretary James Mattis delivered to Trump his implementation plan, which generally bars transgender service, although transgender service members who’ve already come out and currently serving would be able to remain. Trump reveal the recommendations in March, allowing the Pentagon would implement the plan.
Critics pounced on the Mattis findings for relying on junk science adverse to transgender people. Those same conclusions are found in the solicitor general’s petitions to the Supreme Court. For example, one petition points out “individuals with a history of gender dysphoria” would be able to join the military if “they have not undergone gender transition, are willing and able to serve in their biological sex, and can show 36 months of stability (i.e., the absence of gender dysphoria) before joining,” even those each of those conditions fly in the face of the experience of being transgender.
Aaron Belkin, director of the San Francisco-based Palm Center, said in a statement the solicitor general repeats a false assertion allowing transgender people to serve poses substantial risks.
“The Trump administration is trying to frame the successful policy of including transgender troops not just as a failure, but a failure that is so severe that the Supreme Court must weigh in on an emergency basis,” Belkin said. “Its assertion makes a mockery of the evidence. Transgender service members have compiled a two-year record of achievement serving America on the front lines. They are proving every day what military leaders and medical professionals told us: That inclusive service strengthens the U.S. military and makes our country safer.”
Even before Trump issued his directive ordering the Pentagon to implement the policy, LGBT legal groups sued to block him from implementing it. A trial court in D.C. in the case of Doe v. Trump was the first to block Trump from implementing the policy, although a total of four district court issued preliminary injunctions and two federal appeals courts upheld them on appeal.
Shannon Minter, legal director of National Center for Lesbian Rights, said in a statement implementation of the ban would harm the estimated 15,000 transgender people serving in the armed forces as well transgender people who wish to join.
“The great majority of people in this country recognize that transgender people who can meet the same standards as others should have an equal opportunity to serve,” Minter said. “Allowing President Trump’s ban to be implemented would upend thousands of lives and weaken our armed forces.”
The question presented in the petitions is whether the district courts erred in preliminary enjoining the nationwide enactment of the policy Defense Secretary James Mattis proposed. The solicitor general calls for the court to grant all three petitions and consolidate the cases for review before the Supreme Court.
Peter Renn, counsel for Lambda Legal, said in a statement Trump administration is seeking to “short-circuit established practice” by asking the Supreme Court to weigh in on an injunction before the Ninth Circuit has rendered a decision.
“This highly unusual step is wildly premature and inappropriate, both because there is no final judgment in the case, and because even the preliminary issue on appeal has not yet been decided,” Renn added. “It seems the Trump administration can’t wait to discriminate. Yet again, the Trump administration flouts established norms and procedures. There is no valid reason to jump the line now and seek U.S. Supreme Court review before the appellate courts have even ruled on the preliminary issues before them.”
The petitions before the Supreme Court represents the first opportunity the Supreme Court has had to weigh in on the transgender ban. (The solicitor general filed a petition in September with respect a dispute over lower court decision in a documents dispute in the discovery process, but rescinded that petition when the Ninth Circuit issued the stay on that issue.)
It remains to seen whether the court will grant the petitions. It takes of vote of at least four justices to grant a writ of certiorari, or agree to take up a case.
This article originally appeared in the Washington Blade and is made available in partnership with the National Gay Media Association.