Constitution Daily

Smart conversation from the National Constitution Center

A new government challenge to transgender in the military

December 14, 2018 by Lyle Denniston


Perhaps sensing that the Supreme Court will not grant special, faster review of the Trump Administration’s plan to bar many transgender individuals from serving in the U.S. military, government lawyers on Thursday began a new maneuver in the Court. 

If the Court is not ready to rule on that issue in the current term, those lawyers suggested, the Justices should allow the government to enforce the new policy in the months ahead, beginning as soon as mid-January.  The filings in three separate cases testing the policy sought to show that military readiness to go to battle will be impaired if the transgender policy remains on hold and the constitutional fight over it runs well into 2019 and maybe even into 2020.

As of now, four federal trial judges’ separate orders fully block the implementation – on a nationwide basis—of any part of the new transgender restrictions.  In identical arguments in filings Thursday in three of those four cases, government lawyers said these sweeping orders require the military to face a risk of “undermining readiness, disrupting unit cohesion, and weakening military effectiveness and lethality.”

Because many transgender individuals have a medical condition growing out of their gender identity perceptions, the new filings contended, their ability to be ready to go into battle remains in doubt.   The new restrictions do not flatly bar all transgender persons from remaining in uniform or newly enlisting, provided that they will serve in the gender they were assigned at birth, even if they have grown up accepting that they have the opposite gender identity.

The Administration had not asked the Justices earlier to permit prompt enforcement of the new restrictions but did ask the Court in late November to grant review of all three of the cases without waiting for rulings by federal appeals courts.  The appeals stressed the importance of getting a final ruling by the Justices this term.  All four cases are under review in courts of appeals, and two have been subject to public hearings, but no decisions have yet emerged at that level.

Even if the appeals courts were to make their decisions fairly soon, it will be too later for the case to develop in the Supreme Court in time for a final ruling by the end of the term in late June, the government has argued.

The Trump Administration, growing increasingly frustrated that a considerable number of its policy initiatives have been blocked by nationwide orders of federal trial judges, has been taking a considerable number of these controversies directly to the Supreme Court, bypassing the traditional appeal route from trial courts through appeals courts.

That is what it did in three of the transgender cases.  But, when those were initially filed at the Court last month, the Administration did not ask the Court to put the nationwide orders on hold pending Supreme Court action.  It appeared to be confident, at that point, that the Justices would act swiftly on the appeals, so the government could be assured of a final decision by the Justices before the current term ends, before next summer.

But, without explaining why, the Administration changed its approach on Thursday, proposing an alternative to the actual review of the legality of the restrictions during the months remaining in this term.  If swift review by the Justices is denied, then at least the policy should be allowed to go into effect, in some form, as an alternative though temporary remedy.

The switch came amid rising criticism, among some lawyers who practice before the Court and some legal academics, that the frequent bypassing of the usual appeal route by the Trump Administration was undermining confidence in lower courts, and was putting extra pressure on the Supreme Court to resolve complex and controversial issues without the benefit of a full prior airing in lower courts.  The Court itself often seeks to remind lawyers that it is a court of “final review not first view,” meaning that it prefers to await action in the lower courts before stepping in.

The new filings hinted that the Administration’s lawyers may be growing sensitive to such criticism.  Each of the filings made the same statement: “It is with extreme reluctance that we seek such emergency relief [the new plea to enforce the policy] in this Court.”

Proposing permission to implement as an alternative to full-scale review this term, the new documents asked the Court to make up its mind which alternative it is going to choose on January 11, when the Justices are scheduled to hold a private conference to discuss new cases.  The written briefs in the three cases should be filed by then.

The three similarly worded documents in cases from California, Washington State and Washington, D.C., sought to bolster the new plea for “emergency relief” by making a wide-ranging argument against what it said was the growing phenomenon of nationwide injunctions, issued by single trial judges sitting in one state and dealing with specific individuals but with an order against the government – issued before an actual trial – with the order running from coast to coast, affecting anyone in any state affected by the policy at issue.

In its nearly two years in office, the new filings said, the Trump Administration has been stymied by 25 of those nationwide orders.  It used to be, the government lawyers argued, that federal judges confined such orders to affect only those individuals or organizations who had filed the lawsuit, not everyone potentially affected.

Each nationwide order against enforcing the transgender restrictions, the filings said, “extends a disturbing but accelerating trend among lower courts of issuing categorical injunctions designed to benefit” parties not even involved in the specific cases.

If, as has happened with the military policy on transgender individuals, more than one federal trial judge issues a nationwide order, the government has to get each one overturned because if only one falls, then one of the others will still have nationwide effect, the government lawyers told the Court.

If the Court is not willing to put on hold all of the nationwide orders against the policy’s implementation, the federal lawyers suggested, it at least should confine the enforcement ban to the specific individuals who sued – for example, seven individuals in the California case, nine individuals in the Washington State case, and ten in the Washington, D.C., case.

The new applications for delay in the California and Washington State cases were filed with Justice Elena Kagan, because she is assigned to handle emergency matters from those states as part of the federal Ninth Circuit, and the application in the D.C. case was filed with Chief Justice John G. Roberts, Jr., because he has a similar assignment for the nation’s capital.

The two Justices may act on their own or may refer the matter to the full Court – the latter being the most common practice these days. 

Lyle Denniston has been writing about the Supreme Court since 1958.  His work has appeared here since mid-2011. 


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