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.
