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The Trump administration can begin to enforce a ban on transgender troops serving in the military while a challenge to the policy plays out in the courts, the supreme court ruled on Tuesday, a significant decision that could lead to the discharge of thousands of military members.
The court’s order was unsigned and gave no explanation for its reasoning, which is typical of decisions the justices reach on an emergency basis. The court’s three liberal members – Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson – all noted their dissent from the decision.
Lambda Legal and the Human Rights Campaign Foundation, which represented challengers in the case, called the decision “a devastating blow to transgender servicemembers”.
“By allowing this discriminatory ban to take effect while our challenge continues, the Court has temporarily sanctioned a policy that has nothing to do with military readiness and everything to do with prejudice,” the groups said in a statement. “Transgender individuals meet the same standards and demonstrate the same values as all who serve. We remain steadfast in our belief that this ban violates constitutional guarantees of equal protection and will ultimately be struck down.”
Immediately after coming into office, Donald Trump rescinded an executive order from the Biden administration that allowed transgender people to serve openly in the military. On 27 January, the president issued a second executive order that said transgender people couldn’t serve in the military.
“It is the policy of the United States Government to establish high standards for troop readiness, lethality, cohesion, honesty, humility, uniformity, and integrity,” the order said. “This policy is inconsistent with the medical, surgical, and mental health constraints on individuals with gender dysphoria. This policy is also inconsistent with shifting pronoun usage or use of pronouns that inaccurately reflect an individual’s sex.” The defense department began implementing the ban at the end of February.
A defense department estimate from earlier this year said there were 4,240 people in the military with a diagnosis of gender dysphoria – roughly 0.2 % of the 2 million people currently serving.
Seven transgender servicemembers and one transgender person who would like to join the military challenged the ban. Lawyers for the lead platiniff, navy pilot Emily Shilling, said the military had spent $20m on her training, according to SCOTUSBlog.
Several lower courts had halted the ban. The case before the supreme court involved a ruling from US district court judge Benjamin Settle, who blocked the ban in March.
“The government’s arguments are not persuasive, and it is not an especially close question on this record,” Settle, an appointee of George W Bush, wrote at the time. “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.”
Another judge, Ana Reyes, of the US district court in Washington DC, also blocked the ban, saying it was “soaked with animus and dripping with pretext”.
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The Trump administration asked the supreme court to intervene last month. “The district court issued a universal injunction usurping the Executive Branch’s authority to determine who may serve in the Nation’s armed forces,” John Sauer, the US solicitor general, wrote in a brief to the court.
Trump’s ban is broader than a similar policy enacted during his first term. The previous policy allowed those who had come out before the ban to continue to serve in the military. The more recent policy affects nearly all active serving transgender members.
Pausing the order, Shilling’s lawyers said, would “upend the status quo by allowing the government to immediately begin discharging thousands of transgender servicemembers … thereby ending distinguished careers and gouging holes in military units”.
A majority of Americans support allowing transgender people to serve in the military, according to a February Gallup poll. However, there is a sharp partisan split. While 84% of Democrats favor such a policy, only 23% of Republicans do.
