Civil Liberties and Constitutional Rights

Transgender Service Ban Cases Docketed for Supreme Court’s January Conference

By Sarah Grant
Wednesday, January 2, 2019, 8:00 AM

On Nov. 23, the Trump administration filed petitions with the Supreme Court for a writ of certiorari before judgment in three lawsuits challenging its ban on military service by transgender people, seeking extraordinary expedited review and preempting rulings by the courts of appeals. In short, the administration argues that the ban is the result of reasoned decision-making by outgoing Secretary of Defense Jim Mattis, senior military leaders and other experts rather than unconstitutional animus—and that it should therefore survive plaintiffs’ equal protection challenge. Additionally, the government says that expedited consideration is warranted to ensure that the Obama-era policy permitting open service by transgender individuals—which the Trump administration claims “poses a threat to readiness, good order and discipline, sound leadership, and unit cohesion”—does not remain in effect any longer than necessary.

On Dec. 13, the administration followed up with applications to the Supreme Court for a stay of the nationwide preliminary injunctions issued by the district court in each case, as an alternative to certiorari before judgment (available here, here and here). A stay, if granted, would allow the ban to go into effect pending resolution of the cases through the normal appellate process.

Plaintiffs in each case responded to both requests by the government and briefing is now complete. The plaintiffs argued that the preliminary injunctions—which kept in place the Obama-era policy pending resolution of the constitutional challenges on the merits—were proper. They further argued that the government’s claim that immediate intervention by the Supreme Court is necessary to prevent serious harm to the military is not credible, given the history of the litigation and the fact that transgender servicemembers have now served openly for two and a half years without any noticeable effect on readiness and unit cohesion. Neither dissolution of the preliminary injunctions nor granting of a stay is therefore appropriate, in their view.

The Supreme Court will consider whether to grant certiorari or a stay at its Jan. 11, 2019 conference. The filings are linked below. My earlier summary of the issues and arguments is available here, and the rest of Lawfare’s coverage of the litigation can be found here.

Trump v. Jane Doe 2, et al.

Trump v. Karnoski, et al.

Trump v. Stockman, et al.