The Supreme Court revitalized Trump's transgender military ban
On Tuesday morning, in a 5-4 decision, the Supreme Court lifted two lower court rulings that had prohibited Trump’s ban on transgender military service members from coming into effect. This ruling clears a path for the implementation of a second, more narrowly construed iteration of the ban that could prevent nearly all trans people from serving in the military. In a separate order, the Court also allowed the ban to go into effect temporarily while the other cases against it proceed.
The legal fight over the ban began in July 2017, when President Trump announced on Twitter that he was barring transgender people from serving in the US military in any capacity. "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,” he tweeted at the time. The announcement amounted to a reversal of an Obama-era policy that had permitted trans people to openly serve.
Within a month, several civil rights groups filed lawsuits to challenge the ban on constitutional grounds, including that it violated the Constitution’s Equal Protection Clause. In the fall of that year, four district courts responded to the lawsuits by issuing preliminary injunctions preventing the policy from coming into effect.
The legal battles surrounding the ban continued into 2018. In March 2018 the Trump administration responded to the 2017 district court rulings by issuing a revised policy that would allow some trans people to serve. The policy, called the “Mattis Plan,” would permit troop members who had been diagnosed with gender dysphoria after the Obama-era policy came into effect to serve, as well as those living stably in their “biological sex” or “who do not require a change of gender.” In August 2018, a DC district court said that the revised plan was still insufficient, finding that “that the Mattis Plan was the equivalent of a blanket ban on transgender service.”
The Trump administration appealed that decision and in early January of this year. The DC Circuit Court ruled in the government’s favor, which was, followed by the Supreme Court’s decision this week.
There is still hope for those fighting this ban, however, as two lawsuits similar to the DC district course case are still proceeding through the lower courts. Additionally, the preliminary injunction against the first ban, which was put in place by a Maryland District Court as a result of an ACLU lawsuit, is still in effect. According to ACLU attorney Chase Strangio, this means the trans ban cannot be implemented right away.
While these legal battles continue, trans advocates and civil rights attorneys are left wondering whether the courts will see through the Trump administration’s efforts to implement an overtly discriminatory policy by relying on semantics. “What [the Trump administration is] saying is that, transgender people, you can serve, as long as you are completely comfortable serving in your assigned sex at birth, that you don’t transition, that you never have transitioned and that you don’t say that you’re trans,” Strangio explained on Wednesday morning on Democracy Now. “That is definitionally a ban on transgender people serving.” On Twitter, the lawyer also drew parallels between the legal battle over the trans ban and the legal battle over the Muslim ban, which the Supreme Court ruled was constitutional after the Trump administration revised it several times.
According to the legal blog Lawfare, the next step the Trump administration will likely take in light of the most recent Supreme Court decision is to seek the immediate lifting of the Maryland district court’s ruling. That would allow the US armed forces to begin excluding trans people as the other cases wind their way through the courts. As Strangio said on Twitter, “[t]his is heartbreaking and temporary. We will all keep fighting to take down this discriminatory ban. In court, at the ballot, and through our transformation of public discourse and understanding.”
More articles by Category: LGBTQIA
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