Trump’s Transgender Military Ban Remains- For Now

The Supreme Court today voted 5-4 to allow the Trump administration’s restrictions on transgender troops to be implemented while the matter is battled out in lower courts. The five conservative justices, Roberts, Alito, Thomas, Gorsuch, and Kavanaugh, voted to grant the government’s application to stay a nationwide injunction on the restrictions.

From the Washington Post:

The justices lifted nationwide injunctions that had kept the administration’s policy from being implemented.

It reversed an Obama-administration rule that would have opened the military to transgender men and women, and instead barred those who identify with a gender different from the one assigned at birth and who are seeking to transition.

The court’s five conservatives–Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh–allowed the restrictions to go into effect while the court decides to whether to consider the merits of the case.

The liberal justices–Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan–would have kept the injunctions in place.

The Court also turned down a request by the government to hear the matter on its merits, despite the lower court not having ruled yet. So, while the “ban” will go into effect, the controversy is not dead. The litigation in the lower courts will continue.

From the New York Times:

The policy, announced on Twitter by President Trump and refined by the defense secretary at the time, Jim Mattis, generally prohibits people identifying with a gender different from their biological sex from military service. It makes exceptions for several hundred transgender people already serving openly and for those willing to serve “in their biological sex.”

Challenges to the policy have had mixed success in the lower courts. Trial judges around the nation issued injunctions blocking it, and the United States Court of Appeals for the Ninth Circuit, in San Francisco, is expected to rule soon on whether to affirm one of them.

…

The administration had also asked the justices to immediately hear appeals, an unusual request when an appeals court has not yet ruled. The court turned down those requests.

The Supreme Court’s rules say it will review a federal trial court’s ruling before an appeals court has spoken “only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this court.”

So, while the “ban” will go into effect, the controversy is not dead; the litigation in the lower courts will continue.

UPDATE: Some reports indicate that one injunction remains in place which prevents the immediate implementation of the ban.

From Mark Joseph Stern, lawyer and writer for Slate:

Here is the injunction that remains in place. The Trump administration may try to argue that it doesn't apply to the current "Mattis policy," but by its own terms, it obviously does. https://t.co/fnNeFbT955 pic.twitter.com/do3kT6Kvmk

— Mark Joseph Stern (@mjs_DC) January 22, 2019