The Department of Justice is wasting no time in taking advantage of a conservative majority Supreme Court.
On Friday, the DOJ urged SCOTUS to hear an “immediate review” of cases regarding President Trump’s attempt to ban trans people from serving openly in the military. The White House unveiled a policy in March saying individuals with a history of gender dysphoria are barred from enlistment “except under certain limited circumstances.”
Prior to that announcement, Trump claimed in a July 2017 tweetstorm that transgender inclusion in the military results in “tremendous medical costs and disruption.”
Multiple courts have disagreed with that assessment in a series of rulings blocking the president’s policy from going into effect. U.S. District Judge Marsha Pechman of Seattle claimed there are no “factual underpinnings” to the proposal, while former District Court Judge Marvin Garbis said trans exclusion “cannot possibly constitute a legitimate governmental interest.”
But Solicitor General Noel Francisco urged the Supreme Court to override federal injunctions against the ban, calling them “wrong” decisions.
What’s unusual about Francisco’s request is that the Supreme Court generally doesn’t weigh in until lower appeals courts have had the ability to deliberate. Cases brought forward against the ban were heard by a three-judge panel of the Ninth U.S. Circuit Court of Appeals in October and are scheduled to go before a Washington, D.C. appeals court next month.
The solicitor general argued that the issue is grave enough it warrants “immediate review.”
In a letter to the court, Francisco bemoaned that “the military has been forced to maintain” a previous policy put into place by Obama’s Defense Secretary Ash Carter “for nearly a year.” This is despite the fact, as he argued, that a panel of experts led by General James Mattis determined that trans enlistment poses “too great a risk to military effectiveness and lethality.”
LGBTQ advocacy groups claim that the issue has nothing to do with military cohesion. Following the confirmation of Trump picks Neil Gorsuch and Brett Kavanaugh to the bench, they argue the DOJ is trying to exploit a Supreme Court that’s more favorable to its right-wing agenda.
Mara Keisling, executive director for the National Center for Trans Equality, called the plea “senseless” and “reckless,” claiming Trump has “zero respect for this nation’s military or the rule of law.”
“Coming the day after the president turned a Thanksgiving message to troops into a complaint about his own losses in federal court, it is clear the administration is growing ever more desperate to undermine the law and insert prejudice and hate into our armed forces,” Keisling said in a statement.
Others noted that this is one of at least four times in the past few months that the Trump administration has urged the Supreme Court to forgo its wait-and-see approach and bypass federal courts. Additional instances include cases regarding the president’s attempt to disband the Deferred Action for Childhood Arrivals (DACA) program for immigrant youth and questions about citizenship in the 2020 Census.
Peter Renn, counsel for Lambda Legal, called the president’s continued attempt to use SCOTUS as a political pawn “inappropriate.”
“It seems the Trump administration can’t wait to discriminate,” he said in a statement. “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.”
Sarah McBride, national press secretary for the Human Rights Campaign, claimed there’s a reason that the White House is “desperate” to force through its military ban — it’s losing.
“The Trump-Pence administration’s desperate desire to discriminate against transgender service members knows no bounds,” McBride said in a press release. “The administration is in a rush because they know that every day that transgender people continue to enlist and serve with distinction is another day that the courts and the public see this irrational policy for what it is.”
Despite the administration’s claims trans inclusion would harm the military, a 2016 study from the RAND Corporation supports McBride’s assessment. It found that allowing transgender people to serve would have no impact on the U.S. armed forces.