Trump Takes Fight over Transgender Troops to Supreme Court

The Trump administration is asking the Supreme Court to allow it to enforce a ban on transgender service members after lower courts temporarily blocked the ban from taking effect.

In an emergency application Thursday, the Justice Department asked the Supreme Court to lift a nationwide injunction issued last month by a federal judge in Washington state, arguing that the injunction is "usurping the executive branch's authority to determine who may serve in the nation's armed forces."

"The district court's injunction cannot be squared with the substantial deference that the department's professional military judgments are owed," Solicitor General D. John Sauer wrote in the application.

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If the Supreme Court doesn't lift the injunction, it should "at a minimum" limit its effects to just the plaintiffs in the lawsuit against the ban, Sauer added.

The Pentagon is trying to ban transgender people from serving in the military, including by kicking out those already serving, to fulfill an executive order President Donald Trump signed in January that declared that being transgender is "not consistent with the humility and selflessness required of a service member."

Under a Pentagon policy released in February, troops with a history of gender dysphoria, who "exhibit symptoms" of gender dysphoria, or who have transitioned to their gender identity would be disqualified from service. On paper, the policy allows transgender troops to apply for a waiver to avoid being discharged, but advocates say the criteria for a waiver are impossible to meet.

The policy is on ice for now after Trump's order almost immediately sparked lawsuits.

The administration's appeal to the Supreme Court comes in a lawsuit that Lambda Legal and the Human Rights Campaign Foundation filed on behalf of six transgender service members, one transgender person seeking to enlist, and an LGBTQ+ advocacy group called the Gender Justice League.

Last month, the federal district judge assigned to the case issued an injunction that blocks the ban from taking effect while the lawsuit continues to work its way through the legal system.

"The government's arguments are not persuasive, and it is not an especially close question on this record," Judge Benjamin Settle, a George W. Bush appointee, wrote in his ruling on the injunction. "Any evidence that such service over the past four years harmed any of the military's inarguably critical aims would be front and center. But there is none."

The administration appealed to the Ninth Circuit Court of Appeals, but the appeals court last week denied the administration's emergency motion to lift the injunction, setting up the Supreme Court battle.

A separate lawsuit was also filed against the ban in federal district court in Washington, D.C., on behalf of a client list that has grown to nearly three dozen transgender service members and recruits.

Ruling that the ban was "soaked in animus," the judge in that lawsuit also issued an injunction last month. An appeals court later paused that injunction from taking effect while it considers the administration's motion to overturn it, but also warned the administration against taking "any action ... that negatively impacts service members" in the meantime.

A three-judge panel on the appeals court heard oral arguments about the injunction earlier this week, but has not issued its ruling yet and gave no clear indication which way it was leaning during its questioning.

Since the lower courts' injunctions were issued, the Pentagon paused any separations and directed military components to comply with court orders.

In line with that, the Defense Health Agency this week issued a memo saying that gender-affirming health care such as hormone therapy and surgery is again available for service members, according to a copy of the memo obtained by Military.com.

But bringing the case to the Supreme Court could upend the health care and separation policies again.

When Trump similarly tried to ban most transgender people from serving in the military during his first term in office, the Supreme Court allowed the ban to take effect in 2019 after lower courts had ordered the ban to be halted.

The lawyers who are challenging the ban this time have until May 1 to respond to the administration's application to the Supreme Court.

In a statement Thursday, Lambda Legal called the appeal to the Supreme Court "an attempt to reinstate discrimination in our armed forces before the judicial process can run its course."

"We remain committed to robustly representing our clients as we have at every stage of this process," Lambda Legal said in the statement. "Transgender service members have been openly serving our country with honor and distinction for almost a decade and have met and are meeting every neutral service-based standard."

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