In a Thursday filing at the Supreme Court, the Trump administration asked the nation’s top court to let it skip the line, as it were, bypassing the typical route of lower court rulings and fast-tracking Trump’s ban on transgender service members in the U.S. military.
In the filing, the president’s legal team asked for ‘emergency relief’ in the case, citing numerous lower court rulings that have found his ban unconstitutional and have prevented it from taking effect.
After Trump first announced he would kick transgender service members out of the military in a sudden July 2017 tweet that reportedly caught even the joint chiefs of staff by surprise and was quickly criticized by more than three dozen former military officials, four different lawsuits were filed on behalf of both currently-serving and aspiring troops. Plaintiffs in the most prominent of those cases, Karnoski v. Trump, successfully convinced a district court judge to block the ban with an injunction in December 2017. And this July, the Ninth Circuit Court of Appeals declined to hear the case, letting the injunction stand.
Under normal legal procedure, the case can’t move forward to the Supreme Court until the appeals court hears the case. But Trump is taking the highly unusual step of trying to bypass the way the U.S. court system works — ignoring procedure and asking SCOTUS to do the same, all because he considers the continued presence of transgender soldiers in the Armed Forces to be an “emergency.”
It gets even more absurd: The Trump administration isn’t just asking the Supreme Court to bypass legal standards in the Karnoski case — it’s also asking the court to bypass three other injunctions lower courts issued in three other lawsuits that challenge the ban on behalf of trans troops (Jane Doe v. Trump, Stone v. Trump, and Stockman v. Trump).
If the Supreme Court agrees to let Trump’s ban on transgender military service go through, it would essentially be overturning four other court rulings that all found reasons why the ban should not happen. In all four cases, preliminary injunctions were filed by judges in late 2017.
The LGBTQ advocacy groups that filed Karnoski — Lambda Legal and the LGBTQ military association Outserve-SLDN — questioned the federal government’s frenzied rush to move the case forward.
“Yesterday’s filing shows that Trump will stop at nothing to callously harm our trans patriots — even if it means jumping ahead to the Supreme Court before any appeals court has ruled,” Andy Blevins, executive director of Outserve-SLDN, told INTO. “There is no rush: trans people have been openly serving for over two years without any problems, and the military admits it. Apparently Trump can’t respect normal procedure; he’s in a hurry to ruin lives as soon as possible.”
Trans troops were cleared to serve openly in the armed forces in June 2016, after a years-long RAND research study funded by the Office of the Secretary of Defense found that there were no differences between transgender and cisgender soldiers when it came to ability to serve. The study published in 2016 by RAND’s federally-funded and armed forces-sponsored National Security Research Division was titled Assessing the Implications of Allowing Transgender Personnel to Serve Openly and found that the inclusion of transgender soldiers had “little or no impact on unit cohesion, operational effectiveness, or readiness.” In fact, the study found, “Commanders noted that the policies had benefits for all service members by creating a more inclusive and diverse force.”
Trump’s justifications for reversing the military’s policy of allowing trans troops have contradicted the military’s own research. In his initial tweet announcing the ban in July 2017, Trump said: “Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.” The RAND study found that trans soldiers caused no disruption of any sort, and following studies reported that the Defense Department spends vastly more money per year covering the cost of the erectile-dysfunction pill Viagra ($84 million) than it does covering gender confirmation surgery (between $2 and $8 million).
But in a February memorandum, Secretary of Defense James Mattis — directed by Trump to justify the ban — criticized the RAND study, saying “It referred to limited and heavily caveated data to support its conclusions, glossed over the impacts of healthcare costs, readiness, and unit cohesion, and erroneously relied on the selective experiences of foreign militaries with different operational requirements than our own.”
Peter Renn, an attorney with Lambda Legal, said of the Supreme Court filing that there is “no basis for this eleventh-hour tactic.”
“The Ninth Circuit denied a stay five months ago, and transgender troops have continued doing their duty, protecting our country and serving openly for two-and-a-half years now. Nothing has changed since then,” Renn told INTO in an email on Friday.
“But now, not only does the Trump-Pence administration want to cut in line and forgo the normal process in which courts evaluate cases — asking the Supreme Court to weigh in before any appellate court has ruled — the administration also wants a green light so that they can begin kicking out transgender troops if their leapfrog attempt doesn’t succeed,” said Renn.
In an especially biting twist, the Trump administration filed the desperate plea for the Supreme Court to kick trans troops out of the armed forces on the very same day that Trump tweeted a criticism of MSNBC host Mika Brzezinski for using a homophobic term on air. The president has not commented on the disconnect between his callout of homophobia and his relentlessly anti-LGBTQ federal policy moves that include, but hardly end with, the trans military ban.
“It is quite remarkable,” Renn told INTO, “How badly this administration suddenly wants to start discriminating.”