The Supreme Court agreed Jan. 22 to hear arguments regarding the Trump administration’s partial ban on transgendered individuals serving in the armed forces, while at the same time, it lifted a lower court’s injunctions preventing the policy from coming into effect.
The ban was unveiled by President Donald Trump in July 2017. Jim Mattis, the secretary of defense at the time, then developed a more detailed policy. Critics of transgenders serving in the military say their unique personal situations are a distraction that lessens the effectiveness of the military as a fighting force.
Speaking on behalf of the U.S. Department of Defense (DOD), Lt. Col. Carla Gleason told CNN:
“It is critical that DOD be permitted to implement personnel policies that it determines are necessary to ensure the most lethal and combat effective fighting force in the world. DOD’s proposed policy is based on professional military judgment and will ensure that the U.S. Armed Forces remain the most lethal and combat effective fighting force in the world.”
The policy wouldn’t actually prevent all transgendered persons from working for the Department of Defense, according to Nicole Russell of The Washington Examiner.
The prohibition “is not exactly a ban on transgender people but a ban that places parameters around mental health so that those fighting in our armed forces can prioritize national security,” Russell writes. The ban affects individuals “diagnosed with gender dysphoria—a very specific, serious psychological condition that affects one’s mind and trickles down to behavior. Often individuals with gender dysphoria want to transition to the opposite sex.”
Some transgendered individuals can still serve in the military and receive medical care if their gender dysphoria diagnosis was rendered before the policy took effect. Some service members who received the diagnosis after joining the military are allowed to remain provided they stay healthy and avoid sex-transitioning, Russell explains.
The Supreme Court’s decision to review the case culminated in a 5–4 vote, with liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan voting to reject the review request. Ginsburg, 85, is recovering at home after surgeons excised two cancerous growths from a lung on Dec. 21. Chief Justice John Roberts, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh voted to hear the federal government’s appeal.
Although some of the justices voting to hear the case may not be totally committed to upholding the transgender policy, it seems unlikely they would dive into such politically fraught and controversial jurisprudential waters if their goal was merely to allow lower court rulings blocking the policy to remain in effect. Rejecting the petition for certiorari would have accomplished the same goal.
Interestingly, the Supreme Court did not stay the administration’s transgender policy while the case proceeds. In fact, the high court stayed injunctions issued by the lower court in the paired proceedings, Trump v. Karnoski and Trump v. Stockman, that purported to prevent the policy from being enacted.
When lower courts issued injunctions preventing the policy from taking effect, the administration leap-frogged the case directly to the Supreme Court instead of following the usual judicial appeal route, arguing the policy was vital for U.S. national security and needed to be implemented immediately while various legal challenges to it worked their way through lower courts.
While the Supreme Court’s ruling here has no value as legal precedent, it is an implicit rejection of the tendency in recent years for lower courts to arrogate to themselves the power to set national policy by vetoing presidential actions. In earlier days, it was thought that when courts deemed it necessary to issue injunctions to provide immediate emergency relief to litigants, those injunctions ought to be limited somehow, affecting only the parties involved or the jurisdictions, states, or judicial circuits in which the litigation was taking place.
But U.S. district judges today frequently enjoin federal policies that reach well beyond their home jurisdictions. A phalanx of federal judges blocked Trump’s travel ban by way or “national” or “universal” injunctions that prevented residents of terrorism-plagued countries from visiting the United States. Judges similarly attacked Trump’s crackdown on so-called sanctuary cities and on the Deferred Action for Childhood Arrivals (DACA) program that President Barack Obama created by executive action.
Lawmakers are acutely aware of the growing problem of unelected federal judges taking it upon themselves to veto presidential actions by issuing nationwide injunctions that reach far beyond the confines of a particular case.
In the previous Congress, then-House Judiciary Committee Chairman Bob Goodlatte (R-Va.) promoted the proposed Injunctive Authority Clarification Act of 2018 in an effort to restore the traditional understanding that a federal court’s injunctive power extends only to the protection of the parties before it.
Then-U.S. Attorney General Jeff Sessions directed federal prosecutors to try to curb these so-called “non-party” injunctions that allow judges to function as lawmakers.
Conservatives have long complained that left-leaning judges use their powers to advance left-wing policies after Democrats lose at the ballot box. Thus, Democratic Party policies still end up getting enacted even when they are rejected by the voters. Nationwide injunctions issued by politicized judges are especially problematic, conservatives argue, because they allow one judge to bring federal government operations to a halt.
A date for oral arguments in the transgender policy case has not yet been scheduled by the Supreme Court.
