Authors: Justin Jouvenal, Ann E. Marimow
A divided Supreme Court on Tuesday temporarily cleared the way for President Donald Trump’s executive order barring transgender troops from the military.
The justices granted the Trump administration’s request to lift a lower-court ruling that put the policy on hold nationwide while litigation over its constitutionality continues.
As often happens with emergency requests, the majority did not explain its reasoning. The court’s three liberal justices – Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson – said they would have denied the administration’s request.
Trump issued the order to remove transgender troops from the ranks soon after taking office in January. The order, one of a series of moves by the administration aimed at rolling back protections for transgender and LGBTQ+ people, says transgender identity is a “falsehood” that does not comport with the “humility and selflessness required of a service member.”
“The Armed Forces have been afflicted with radical gender ideology to appease activists,” it says.
Trump’s order reversed a Biden administration policy that prohibited discrimination based on gender identity and allowed transgender troops to serve openly. The Biden policy, in turn, removed an earlier transgender troop ban put in place in 2018 during the first Trump administration.
The Supreme Court allowed the 2018 ban put in place by Trump to go into effect.
Transgender troops were first allowed to serve openly in 2016. More than 4,000 service members have been diagnosed with gender dysphoria, according to a senior defense official who spoke on the condition of anonymity under ground rules set by the Trump administration.
Advocates for the troops who filed the lawsuit called the Supreme Court’s order a “devastating blow to transgender servicemembers who have demonstrated their capabilities and commitment to our nation’s defense.”
Lambda Legal and Human Rights Campaign Foundation said the court had “temporarily sanctioned a policy that has nothing to do with military readiness and everything to do with prejudice.” Transgender individuals “meet the same standards and demonstrate the same values as all who serve,” the group said in a statement.
After Trump’s second-term ban was issued, gay and transgender rights groups sued on behalf of seven transgender service members and a prospective member, claiming the order was discriminatory, a threat to national security and a waste of years of military training.
“For nearly a decade, across multiple administrations, thousands of transgender people have openly served in our military with dedication, honor, and distinction,” their filing with the Supreme Court reads. “These servicemembers have sacrificed to serve our country-all the while meeting the same rigorous standards for accession and retention required of every soldier, airman, marine, and sailor serving in our Armed Forces.”
A federal judge in Washington state issued a preliminary injunction against the enforcement of the executive order in March, saying the Trump administration had presented no information that transgender troops harmed the operation of the military.
U.S. District Judge Benjamin Settle, a nominee of President George W. Bush, said the government’s “unrelenting reliance on deference to military judgment is unjustified in the absence of any evidence supporting ‘the military’s’ new judgment reflected in the Military Ban.”
The Trump administration then appealed to the Supreme Court.
“The Department rationally determined that service by individuals with gender dysphoria would undermine military effectiveness and lethality – consistent with similar, long-standing determinations for a wide range of other medical conditions,” Solicitor General D. John Sauer told the justices in a filing.
The case now goes back to the U.S. Court of Appeals for the 9th Circuit, which will hear the Trump administration’s appeal of the lower court’s ruling.
The Pentagon, which issued a new policy based on Trump’s order in February, ordered each branch to identify service members with gender dysphoria within 30 days and to begin removing them from the service within 30 days after that. The order allows exceptions for troops directly supporting “warfighting capabilities.”
Troops that obtain a waiver to stay in the military will face additional restrictions, including not being able to access changing rooms, bathrooms and showers for people of the sex they transitioned to. They will also have to meet the physical standards associated with their birth sex.
Two other lawsuits against the transgender troop ban are also being litigated in the courts. U.S. District Judge Ana C. Reyes in D.C. also blocked the policy in March, writing that “the cruel irony is that thousands of transgender servicemembers have sacrificed – some risking their lives – to ensure for others the very equal protection rights the Military Ban seeks to deny them.”
The order from Reyes, a nominee of President Joe Biden, was temporarily blocked by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit.
– – –
Casey Parks contributed to this report.
