Supreme Court Allows Trump Transgender Ban to Proceed
They've reversed a lower court ruling. For now.
Adam Liptak, NYT (“Supreme Court Lets Trump Enforce Transgender Troop Ban as Cases Proceed“):
The Supreme Court ruled on Tuesday that the Trump administration may start enforcing a ban on transgender troops serving in the military that had been blocked by lower courts.
The ruling was brief, unsigned and gave no reasons, which is typical when the justices act on emergency applications. It will remain in place while challenges to the ban move forward.
The court’s three liberal members — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — noted dissents but provided no reasoning.
The case concerns an executive order issued on the first day of President Trump’s second term. It revoked an order from President Joseph R. Biden Jr. that had let transgender service members serve openly.
A week later, Mr. Trump issued a second order saying that “adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful and disciplined lifestyle.”
The Defense Department implemented Mr. Trump’s order in February, issuing a new policy requiring transgender troops to be forced out of the military. According to officials there, about 4,200 current service members, or about 0.2 percent of the military, are transgender.
[…]
In March, Judge Benjamin H. Settle of the Federal District Court in Tacoma, Wash., issued a nationwide injunction blocking the ban, using Commander Shilling as an example of the policy’s flaws.
“There is no claim and no evidence that she is now, or ever was, a detriment to her unit’s cohesion, or to the military’s lethality or readiness, or that she is mentally or physically unable to continue her service,” Judge Settle wrote. “There is no claim and no evidence that Shilling herself is dishonest or selfish, or that she lacks humility or integrity. Yet absent an injunction, she will be promptly discharged solely because she is transgender.”
Judge Settle, who was appointed by President George W. Bush, wrote that the government had failed to show that the ban was “substantially related to achieving unit cohesion, good order or discipline.”
“Although the court gives deference to military decision-making,” the judge added, “it would be an abdication to ignore the government’s flat failure to address plaintiffs’ uncontroverted evidence that years of open transgender service promoted these objectives.”
[…]
Early in his first term, Mr. Trump announced a transgender ban on Twitter, but two federal judges blocked the policy.
The Supreme Court lifted those injunctions in 2019 by a 5-to-4 vote, allowing a revised ban to take effect while legal challenges moved forward. The cases were dropped after Mr. Trump left office and Mr. Biden rescinded the ban.
The courts have long given extraordinary deference to the President, Secretary of Defense, and other senior officials on military personnel policy. Rightly so, given the stakes involved and the unique “good order and discipline” requirements of a combat force.
Here, though, it seems unwarranted. Unlike Trump’s 2017 order, we now have a significant record of open service by transgender servicemembers. While there have been growing pains, Settle is right: the disruption has been rather minimal. Further, if the estimate of 4200 active trans members is anywhere close to accurate, a whole lot of people will have their lives and careers disrupted for years as the case winds its way to the Supreme Court. And, if the last time is any indication, it might become a moot case with the next administration before reaching the highest court.
Beyond that, recognizing again that military service has always been treated differently, the precedent in Bostock would seem a strong indication that the policy would eventually be overturned. Granting that stare decisis seems to have fallen out of favor with this iteration of the Court, Bostock was a 6-3 ruling written by Neil Gorsuch. Two members of the majority, Ruth Bader Ginsburg and Stephen Breyer, have subsequently retired. Ginsburg was replaced by Amy Comey Barrett, who may well have voted the other direction. Breyer was replaced by Ketanji Brown Jackson, who is almost certainly on the same side. So, even if it were 5-4, the plaintiffs would prevail.
The courts have long given extraordinary deference to the President, Secretary of Defense, and other senior officials on military personnel policy. That deference was established when the President and Secretary of Defense were intelligent, thoughtful, good faith actors who had the best interests of the military and the country foremost in their reasoning.
@Charley in Cleveland: Quite. The problem is that, once elected or confirmed, Presidents get to President and SECDEFs get to SECDEF. We invest an extraordinary amount of power in these people for very good reasons. People need to take the job of voting for POTUS seriously. And the Senate ought to take their responsibility to vet nominees for senior posts seriously. Alas.
Courts deferring to the Executive traditionally meant that they would accept plausible arguments without asking too many questions. That is certainly not the same as granting the Executive whatever it wanted for whatever reason.
Here, the thing is that the government didn’t even bother to make a plausible argument (i.e., that unit cohesion or discipline could be impacted). And a SCOTUS majority went right along.
In the words of the injunction-granting judge (a Bush-appointee):
As long as its ideological preferences are met, SCOTUS has no problems whatsoever with being an utterly lawless court.
@James Joyner: Presidents get to president, but I am exhausted by these [waives hand broadly] “findings” that underlie this administration’s EOs. “We are at war with Venezuela,” “our trade deficit is an emergency,” “foreign films are an emergency.” As drj notes, the district court was plenty willing to defer to any rational findings, but this administration makes no effort to find any.
@Joe: They’re actually better on that front than they were the first go-round but, yeah, it’s almost always rather obviously pretextual.
There isn’t a chance of the ban being ultimately overturned, right?
I am amused by this action from an administration of men wearing pancake makeup.
JFC – Hegseth built his own makeup studio in the Pentagon.
Then there is VP Eyeliner.
Musk has his hair implants, which certainly qualify as gender-affirming surgery.
And of course Trump, with his orange makeup, tons of hairspray, and high heels (elevator shoes).
Klinger must be rolling over in his pumps.
The facts you have set out show that Gorsuch voted against the emergency stay, despite writing the opinion in Bostock. Has he changed his mind? Or is this some kind of game where, when and if the full case comes before them and he has to sign his name, he will flipflop? This is also the case with the Chief. Apparently being trans is way, way ickier than being gay, and they are flopping around looking for some way to make a hole in a needle that they can thread through.
Given Article I, section 8, causes 14 and 16:
I’d argue that the President has the power to decide how to use the army in combat, but that deciding who is in the army and what regulations they must follow is among Congress’s powers
@Fortune: Define “ultimately.” To paraphrase Keynes, ultimately, we’ll all be dead (and no longer care).
But in, say, 4 years? Sure that’s possible. It depends on what the sheeple vote for