Civil rights groups and gay rights organizations are fighting the president’s order that would prohibit transgender men and women from enlisting, possibly subjecting current service members to discharge and denying them certain medical care.
Trump announced in a July 2017 tweet that he was reversing an Obama administration policy allowing transgender men and women to serve openly and to receive funding for sex-reassignment surgery.
Trump’s message that “the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military” surprised military leaders and members of Congress. Trump said he was “doing the military a great favor” by “coming out and just saying it.”
Trump issued a memorandum ordering Secretary of Defense Jim Mattis to submit “a plan for implementing” the ban. The Mattis plan was submitted earlier this year.
But it has not satisfied judges in lower courts, who have issued injunctions to keep the current policy in place.
“The decisions imposing those injunctions are wrong, and they warrant this Court’s immediate review,” Francisco wrote Friday.
Challengers have cited Trump’s statements to argue that the directive is the result of discrimination, rather than a study of how allowing transgender personnel affects the military. Lower court judges have largely agreed.
“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,” Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia wrote in a case last spring.
The U.S. Court of Appeals for the 9th Circuit has heard arguments on the merits of the case but has not yet issued an opinion. The U.S. Court of Appeals for the District of Columbia Circuit is scheduled to hear an appeal of the ruling next month.
Normally, the Supreme Court waits to take action until regional appeals courts have ruled. But Francisco told the Supreme Court the administration cannot afford to wait for those circuits to decide, and that the justices should accept the cases now so they can be heard in the current term.
“The military has been forced to maintain[its] prior policy for nearly a year,” Francisco wrote. “And absent this court’s prompt intervention, it is unlikely that the military will be able to implement its new policy any time soon.”
Francisco added that “Secretary Mattis and a panel of senior military leaders and other experts determined that the prior policy . . . posed too great a risk to military effectiveness and lethality.”
Lawyers for those challenging the policy change said there is no reason for the court to abandon its usual policy.
“There is no urgency here and no reason for the court to weigh in at this juncture,” said Jennifer Levi, transgender rights project director for the gay rights group GLAD. “The injunctions preserve the status quo of the open service policy that was thoroughly vetted by the military itself and has been in place now for more than two years. This is simply one more attempt by a reckless Trump administration to push through a discriminatory policy.”
Added Lambda Legal Counsel Peter Renn: “Yet again, the Trump administration flouts established norms and procedures. There is no valid reason to jump the line now and seek U.S. Supreme Court review before the appellate courts have even ruled on the preliminary issues before them.”
The Trump administration has taken an aggressive posture when lower courts have ruled against it on important issues. It has asked the Supreme Court — with varying degrees of success — to accept the cases before they have run through the normal appeals process. The administration argues that such cases can only be settled by the high court.
The effort has drawn criticism from those who say such requests puts the Supreme Court in position to be seen as doing the administration’s bidding.
“Under Trump, the Justice Department has shown little respect to judges who rule against it — or who don’t rule for it quickly enough,” Joshua Matz, a lawyer who filed an amicus brief on behalf of the challengers of the transgender ban, wrote in a recent op-ed in The Washington Post.
“Trump’s lawyers fail to understand that the government is not entitled to play leapfrog whenever it loses in federal court.”