High Court Clears Way for Military Sex-Change Limits

The National Center for Transgender Equality, NCTE, and the Human Rights Campaign gather on Pennsylvania Avenue in front of the White House in Washington on Oct. 22, 2018, for a #WontBeErased rally. (AP Photo/Carolyn Kaster)

WASHINGTON (CN) – Putting two nationwide injunctions on hold, the Supreme Court said Tuesday that the Trump administration can enforce its military-service restrictions on transgender troops pending appeal.

The stays appeared without comment in an order list this morning from the Supreme Court. While Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan said they would have denied the stays, none of the justices explained their rationale in an accompanying opinion.

Federal judges in Washington state and in California issued the two nationwide injunctions against the Trump administration last month. U.S. District Judge Colleen Kollar-Kotelly in Washington, D.C., enjoined the policy as well, but the D.C. Circuit vacated her injunction earlier this month.

In all three cases, President Donald Trump petitioned for writs of certiorari before judgment. The Supreme Court shot down the demands without comment in the same order list Tuesday that includes the stays.

Distinct from a short-lived 2017 policy by then-Defense Secretary Ash Carter, the guidelines on transgender military service here were adopted in February 2017 by Trump’s second defense secretary, James Mattis.

The Mattis policy, as it has come to be known, contains two key elements: excluding from military service transgender people who either have gender dysphoria or are otherwise unwilling to serve in their biological sex.

Kollar-Kotelly determined that this was a blanket ban in October 2017, and the nationwide injunctions from U.S. District Judge Marsha Pechman in Seattle and U.S. District Judge Jesus Bernal in Riverside, California, came on Dec. 11 and Dec. 22, respectively.

U.S. Solicitor General Noel Francisco contested the injunctions in identical petitions to the high court, saying the military needed immediate relief or else the previous policy would “remain in place for at least another year and likely well into 2020 — a period too long for the military to be forced to maintain a policy that it has determined, in its professional judgment, to be contrary to the nation’s interests.”

“In arriving at that new policy, Secretary Mattis and a panel of senior military leaders and other experts determined that the prior policy, adopted by Secretary Mattis’s predecessor, posed too great a risk to military effectiveness and lethality,” Francisco’s petitions both state. “As a result of the court’s nationwide preliminary injunction, however, the military has been forced to maintain that prior policy for nearly a year.”

In the Seattle case, lead plaintiff Ryan Karnoski is represented by Kirkland & Ellis attorney Stephen Ray Patton, as well as by Lambda Legal, Newman Du Wors and OutServe-SLDN.  

Lambda Legal attorney Peter Renn expressed confidence that ongoing discovery in the case will expose the Mattis policy “for what it is: rank discrimination.”

“The decision to stay the preliminary injunctions is disappointing, because it lays the groundwork for the government to begin implementing President Trump’s dangerous and discriminatory ban to deprive the military of qualified transgender service members, but it’s also important to note that this decision is not a ruling on the merits of the constitutionality of the ban,” Renn said in an email this afternoon.

Latham & Watkins attorney J. Scott Ballenger represents the challengers in Riverside, who are led by Aiden Stockman.

WilmerHale attorney Paul Wolfson represents the D.C. challengers, led by Jane Doe 2.

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