Constitution Daily

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Transgender-in-the-military dispute reaches Supreme Court

November 26, 2018 by Lyle Denniston


Attempting once again a highly unusual legal maneuver for getting prompt Supreme Court review of major controversial issues, the Trump Administration has asked the Justices to restore the military’s power to exclude most transgender people from serving in the armed forces.  That policy is temporarily blocked nationwide by orders of three federal trial judges.

As in other instances, the government’s new requests on Friday were made without waiting for lower courts to complete their review of the policy.

Seeking to bypass altogether the federal appeals court level of review, the Administration filed three companion appeals and urged the Justices to take on all three, with final rulings before the Justices’ current term is finished in late June.  If the Court is not willing to grant review at this point, it should at least block the three trial court orders so that enforcement of the policy could begin swiftly.

The Justices have the option of granting either request, or denying them and then await the review process to be completed in lower courts.  It would take four votes of Justices to grant review, but five votes to set aside the lower court orders now keeping the policy on hold.

President Trump personally ordered the Pentagon to adopt a flat ban on any transgender individual from continuing to serve in uniform or from joining the military anew by enlisting.  The Pentagon, after a study, modified the policy somewhat, but still retained the ban on any transgender person from serving unless they were willing to do so in the gender identity they were assigned at birth, rather than the opposite gender they have come to prefer.   No one would be allowed to serve or join if they had received medical treatment for the transgender medical condition, enabling them to transition to the opposite gender.

In the new appeals to the Supreme Court, Administration lawyers argued: “There is no fundamental right to serve in the military, much less to do so in a particular manner.”

A transgender person is one who was assigned a specific male or female gender at birth, but who, as they grow up, comes to identify themselves as of the opposite gender.  While it is considered a medical condition, it is not generally a disabling disorder and transgender people function fully in many lines of work and in life.   Many have medical or surgical treatment that enables a fuller transition to the opposite gender.

The Pentagon, however, believes that allowing transgender people to be on duty in the military while living their lives in the opposite gender from that assigned at birth would cause problems in the ranks, invading the privacy of troops who accept their birth gender assignment, and would impair military effectiveness.  In taking that position, the Pentagon cites the “unique mental and emotional stresses of military service.”

In temporarily blocking the Pentagon policy nationwide, the three trial judges ruled that it would be unconstitutional to treat transgender people unequally in the opportunity to serve in uniform, would violate their rights to be treated fairly while in the military, and would compel them to disclose private information about their gender status.

Those are the issues that the Administration wants the Justices to review, and then to overturn.

One of the three trial judge’s order against enforcement of the policy has already been the subject of a hearing in a federal appeals court.  Earlier this month, Administration lawyers told that appeals court that, if it did not issue a final ruling on the issue by today’s date, the government would then ask the Supreme Court to move in without waiting for any further decisions in the lower courts.  The appeals court did not respond to that government deadline.

In Friday’s filings, government lawyers made clear that the approach they prefer the Supreme Court to take would be to grant review, because doing that would put all further proceedings in the lower courts on hold pending a final decision by the Justices.

In ordinary practice in federal courts, a party is not allowed to appeal to a higher court until there is a final ruling in the proper lower court.  But there is a special provision in federal law that allows a maneuver – supposedly used only rarely – that permits the government to bypass the appeals court level, and take a truly important and urgent case from a trial court’s ruling directly to the Supreme Court.

That is a provision, however, that the Trump Administration has been attempting with increasing frequency, when it loses a case on a significant policy issue when a trial court has ruled against the government position.

For example, it is currently using that legal tactic in asking the Justices to overturn trial court orders that have kept intact nationwide the six-year-old policy that protects some 700,000 young undocumented immigrants from being deported, after spending almost all of their lives living in this country.   That policy was first adopted by the Obama Administration, but President Trump wants it ended and Congress has so far not stepped in to save the program. (The policy is titled “Deferred Action for Childhood Arrivals,” or DACA.)

The Trump Administration has also been using the appeals-bypass approach in asking the Justices to stop a wide-ranging lawsuit over global warming and a constitutional case involving an Administration plan to ask every American about their citizenship as part of the 2020 census.

So far, the Supreme Court has been unwilling to speed up the review process in most of these instances.  The Administration, nevertheless, keeps trying.

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


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