Supreme Court rules in favor of Trump transgender ban

By CLAUDIA GRISALES | STARS AND STRIPES Published: January 22, 2019

WASHINGTON – The U.S. Supreme Court on Tuesday ruled in favor of a controversial Trump administration ban of transgender personnel in the military, allowing the measure to stay in place pending several lawsuits to fight the move.

The U.S. Court of Appeals for the District of Columbia said recently that a lower court judge erred in blocking the policy, also known as the “Mattis Plan,” which was named for former Defense Secretary Jim Mattis who drafted its specifics. The policy originated from a proposal in 2017 by President Donald Trump.

The Supreme Court’s 5-4 decision on Tuesday was issued along ideological lines, with the court backing a pair of lower court decisions to allow the ban to be enforced.

A White House effort to ban transgender people from military service has been mired in confusion, chaos and a web of litigation nearly two years after Trump fired off tweets that ignited the controversy, experts have said.

A 2016 Pentagon policy to open the military to transgender individuals had remained in place, but a Trump administration effort to reverse that plan created a chilling effect for potential recruits and heightened fears for some servicemembers, some advocates for transgender personnel have said.

The Defense Department lauded the ruling Tuesday.

"The Department is pleased with the orders issued by the Supreme Court today,” said Air Force Lt. Col. Carla Gleason, a Pentagon spokeswoman. “We will continue to work with the Department of Justice regarding next steps in the pending lawsuits.

However, Gleason stressed the Supreme Court ruling does not impact current servicemembers, it only impacts people joining or attempting to join the military.

“As always, we treat all transgender persons with respect and dignity,” Gleason said. “[The Defense Department’s] proposed policy is not a ban on service by transgender persons. 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.”

The Justice Department also praised the decision Tuesday.

“We are pleased the Supreme Court granted stays in these cases, clearing the way for the policy to go into effect while litigation continues. The Department of Defense has the authority to create and implement personnel policies it has determined are necessary to best defend our nation,” said Kerri Kupec, a Justice Department spokeswoman. “Due to lower courts issuing nationwide injunctions, our military has been forced to maintain a prior policy that poses a risk to military effectiveness and lethality for over a year. We will continue to defend in the courts the authority and ability of the Pentagon to ensure the safety and security of the American people.”

But LGBTQ rights organizations immediately criticized Tuesday’s decision.

Lambda Legal and OutServe-SLDN filed the first complaint against the transgender ban. Their case, filed on behalf of transgender servicemembers and transgender individuals aspiring to join the military, is working its way through the U.S. District Court in Seattle. The organizations called the Supreme Court decision “perplexing,” and “disappointing.”

“For more than 30 months, transgender troops have been serving our country openly with valor and distinction, but now the rug has been ripped out from under them, once again,” Lambda Legal Counsel Peter Renn said. “We will redouble our efforts to send this discriminatory ban to the trash heap of history where it belongs.”

GLBTQ Legal Advocates & Defenders, or GLAAD, brought another case against the ban to federal court. Jennifer Levi, the nonprofit’s director of transgender rights, said the Trump administration had a “cruel obsession with ridding our military of dedicated and capable servicemembers.”

At least four court cases had put the Trump transgender ban on hold.

The Palm Center, a research institute that studies LGBTQ inclusion in the military, urged the Defense Department not to reinstate the transgender ban, despite the Supreme Court’s decision. Palm Center Director Aaron Belkin said in a statement that it would “undermine readiness, cause significant disruptions and uncertainty, deprive the military of much-needed talent and wreak havoc with the lives and careers” of transgender troops.

Democrats also blasted the decision. Rep. Mark Takano, D-Calif., the new chairman of the House Committee on Veterans’ Affairs, described the ban as “cowardly and misguided.” Sen. Kamala Harris, D-Calif., a former prosecutor and candidate in the 2020 presidential race, tweeted: “We have to fight back to reverse this.”

Rep. Adam Smith, the new chairman for the House Armed Services Committee, has made fighting the ban a key part of his new mission as leader of the panel that helps direct military policy and spending. He fired back Tuesday.

“I am extremely disappointed in the Supreme Court’s decision to allow the Trump administration to enforce its discriminatory ban on transgender military service without proper due process in the courts,” said Smith, D-Wash. “Anyone who is qualified and willing should be allowed to serve their country openly, without their career being affected by an arbitrary, discriminatory directive from the president. We have fought against this bigoted policy at every step, and we will continue to do so.”

Trump caught the Pentagon by surprise in July 2017 when he announced through a series of three tweets that he would ban transgender individuals from military service, reversing a 2016 policy announced by Carter. But Trump’s ban was blocked from implementation through ongoing challenges to it in federal court.

“After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you,” Trump’s July 26, 2017 tweets read.

About a month later, Trump formally issued a new directive to the Defense Department to issue the ban. With that, Mattis issued a new 48-page policy in March to ban most transgender individuals from serving in the military. The transgender military ban by Trump had since been blocked by four federal judges, with injunctions pending the outcome of four discrimination lawsuits filed by transgender individuals and advocates against the federal government.

Following the Trump tweets, a bipartisan group of lawmakers, including the late Arizona Republican Sen. John McCain, then-chairman of the Senate Armed Services Committee, former Sen. Orrin Hatch, R-Utah, and more than 50 retired generals and admirals condemned the move.

Other senators filed legislation to block a military transgender ban. Sen. Kirsten Gillibrand, D-N.Y., through a series of Senate Armed Services Committee hearings last year, was able to confirm with all four military service chiefs that transgender servicemembers have not impacted morale or created problems for the services. Also, current and former top U.S. medical officials charged the ban was not based on a medically valid reason.

The court cases were moving forward in Washington state, California, the District of Columbia and Maryland, and a trial was slated for later this year for at least one of the cases.

A Pentagon policy issued last year by Mattis calls for the reversal of the policy by former President Barack Obama’s administration to lift the ban on transgender men and women serving in the military, but allows people serving now to remain in the service. The new policy would disqualify from service all transgender people who require or have already undergone gender transition, and bans people with current or recent gender dysphoria diagnosis other than in rare circumstances.

Stars and Stripes staff writers Corey Dickstein and Nikki Wentling contributed to this story.

Twitter: @cgrisales