Supreme Court Revives Trump’s Ban On Transgender Military Personnel, For Now

January 22, 2019

Updated at 2:18 p.m. ET

The Supreme Court has reinstated President Trump’s ban on transgender service members in the military, granting a stay of two lower-court injunctions that had blocked the president’s policy. The justices voted 5-4, reflecting the high court’s conservative majority.

The decision allows the Pentagon to bar transgender people from joining or, in some circumstances, remaining in the military while the lower-court rulings are appealed. The justices did not allow the Trump administration to leapfrog the appeals court, as it had requested.

The two cases — Trump v. Karnoski and Trump v. Stockman — are currently working their way through the U.S. Court of Appeals for the 9th Circuit.

In both of those cases, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan would have maintained a stay on the ban, Tuesday’s Supreme Court order reads.

The transgender ban is being revived more than a year after a federal court in Washington, D.C., first blocked it in October 2017. U.S. District Judge Colleen Kollar-Kotelly ruled that trans members of the military had “a strong case that the president’s ban would violate their Fifth Amendment rights,” as NPR reported.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit lifted Kollar-Kotelly’s injunction earlier this month, concluding that the ban had been substantially revised by the time it was instituted by former Defense Secretary Jim Mattis in March 2018. But other federal courts had also ruled against the ban — and until Tuesday, those other injunctions remained in place.

The two outstanding cases come from California and Washington state, in the 9th Circuit’s jurisdiction.

The Human Rights Campaign, which is involved in the Karnoski case in Washington state, condemned the Supreme Court’s decision, saying it “thrusts this administration’s discriminatory agenda onto a military that clearly doesn’t want it, and does so at the expense of transgender people’s careers and service.”

Trump announced his ban abruptly in the summer of 2017, saying in a series of tweets that “the United States Government will not accept or allow…… ….Transgender individuals to serve in any capacity in the U.S. Military.”

The decision seemed to take Defense Department officials by surprise, sparking confusion despite Trump’s assertion that he had consulted with “with my Generals and military experts.”

The tweets were followed by an official presidential memo in August of that year, which gave the defense secretary (and for the Coast Guard, the homeland security secretary) the discretion to “determine how to address transgender individuals currently serving in the United States military.”

Trump’s ban was a sharp reversal of a Pentagon policy announced in June 2016, when former Defense Secretary Ash Carter said, “Effective immediately, transgender Americans may serve openly, and they can no longer be discharged or otherwise separated from the military just for being transgender.”

That Obama-era policy was hailed as ending an era of legal and professional limbo for trans people in the U.S. armed service; Carter said the decision was made out of a desire to attract “all talent possible” to serve in the military.

At the time, researchers at the RAND Corporation think tank estimated there were as many as 7,000 active-duty transgender service members, with up to 4,000 more in the reserves.

Because of that policy and the lower-court injunctions, the first openly trans people were officially able to join the U.S. military on Jan. 1, 2018. But now their status is once again in jeopardy.

Tuesday’s order states that if the 9th Circuit rules against the ban, the ban on trans people in the military would remain in effect until the Supreme Court justices either deny a request to hear the case (if such an application is made) or rules against the Trump administration’s policy.

NPR’s Domenico Montanaro contributed to this report.

Copyright 2019 NPR. To see more, visit https://www.npr.org.

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