The U.S. Supreme Court on Tuesday allowed the Trump administration to go ahead, for now, with its plan to ban transgender military service.
The court, without comment, granted a request from the Justice Department to allow the government to enforce the ban while challenges to the policy play out in the lower courts. The earliest the Supreme Court could act on the issue would be during its next term which begins in October.
In a July 2017 tweet, President Donald Trump announced that he would end a policy, begun during the Obama administration, that allows transgender men and women to serve openly and to have the government pay for sex-reassignment surgery.
“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,” he 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.”
Six months later, then-Defense Secretary James Mattis announced a revised policy that would allow transgender individuals in the military, provided that they served “in their biological sex” and did not seek gender-transition surgery.
Federal district court judges in California, Washington, DC, and Washington state issued orders blocking the policy nationwide. They said it likely amounted to unconstitutional discrimination and rejected the administration’s claims that military readiness was at issue.
“There is absolutely no support for the claim that the ongoing service of transgender people would have any negative effect on the military at all. In fact, there is considerable evidence that it is the discharge and banning of such individuals that would have such effects,” wrote Judge Colleen Kollar-Kotelly of the court in Washington, D.C.
The Justice Department went to the U.S. Supreme Court in November, urging the justices to take up the issue even before the cases had gone through the federal appeals courts — a request the Supreme Court grants very rarely. A month later, the government as a fall back asked the court to narrow the effect of the lower court rulings so that they applied only to the individuals who sued and not to the entire country.
The cases involve “a matter of imperative public importance: the authority of the U.S. military to determine who may serve in the nation’s armed forces,” Solicitor General Noel Francisco told the court. “The Secretary of Defense determined that individuals with a history of the medical condition gender dysphoria should be presumptively disqualified from military service, particularly if they have undergone the treatment of gender transition or seek to do so.”
Opponents of the ban urged the court to leave the lower court orders in place that prevent enforcement of the Trump administration’s proposed policy change.
The Supreme Court on Tuesday also opted to stay out of several other high-profile legal battles, which included taking no action on Tuesday on the future of the Deferred Action for Childhood Arrivals program, a move that requires the government to keep the program going for at least 10 more months.
The justices also took no action the issue of whether federal laws prohibiting sex discrimination on the job also apply to sexual orientation. Federal appeals courts are divided on the question.
Some have ruled that in passing the 1964 Civil Rights Act, Congress did not intend to include same-sex bias when it prohibited job discrimination on the basis of race, sex, and other characteristics. But other courts have said discriminating against someone because of sexual orientation is a form of sex discrimination. Civil rights groups say there’s no need to change the law, arguing that it already bans discrimination on the basis of sexual orientation.
In other action Tuesday, the justices said they would not hear Indiana’s effort to revive a state law intended to restrict access to abortion. Passed in 2016 and signed by then-governor Mike Pence, the law prohibited what the state called discriminatory abortions — those sought because of characteristics of the fetus, including gender, race, or diagnosis of Down syndrome or other defect.
Supporters of the measure said the law responded to medical developments that allow women to choose which child to bear, an option the state said was not contemplated at the time of the Roe v Wade decision. But Planned Parenthood said it was an unconstitutional restriction on abortion rights and lower courts agreed, preventing the law from taking effect.