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Supreme Court allows ban on transgender troops to go into effect

On Behalf of | Jan 22, 2019 | Employee Rights

Today, the U.S. Supreme Court issued stays on two nationwide injunctions involving the Trump administration’s ban on military service by transgender people. Previously, federal district courts in California and Washington state had issued the injunctions to put the policy on hold while litigation continued. The Supreme Court’s stays on those injunctions means that the administration may now implement the policy while litigants fight over its legality and constitutionality.

The 2017 policy known as the “Mattis policy” excludes transgender people from serving in the military if they are unwilling to serve in their biological sex.

Before the Obama administration, transgender troops could be dismissed from the service regardless of their quality or performance. In 2016, however, the Pentagon announced that transgender troops could serve openly. The Trump administration has delayed implementation and worked to reverse the policy.

According to court filings, the military now considers the Obama policy to be “contrary to the nation’s interests.” It claims to be basing its decision on the professional military judgment needed to “ensure the most lethal and combat-effective fighting force.”

Groups suing on behalf of transgender military personnel say the Mattis policy is based on nothing but discriminatory animus.

“Trump administration’s cruel obsession with ridding our military of dedicated and capable service members because they happen to be transgender defies reason and cannot survive legal review,” said a spokesperson for GLBTQ Legal Advocates & Defenders, one group involved in the lawsuits.

That may be true. The issuance of the stays by the Supreme Court was done on a 5-4 vote without regard to the merits of the cases. It also denied immediate review of the cases, meaning they will still need to be appealed in the normal process before the high court would consider hearing them on the merits. And, some federal courts have found bias against transgender people to be unlawful sex discrimination, although not in military cases.

Effect of the new policy

Now that the Supreme Court has allowed the policy to move forward, the Pentagon can begin denying enlistment to people who have undergone or plan to undergo a gender transition. Further, it can order current members of the military to serve in their biological sex unless they have already begun a gender transition. There is an exception in place for the approximately 900 service members who relied on the Obama policy to begin a gender transition.

The timing depends on a procedural filing with a Maryland court where another case challenging the policy has been filed. That filing could be made at any time, so the policy could be implemented shortly.

Of all active duty service members, approximately 9,000 — 1 percent — identify as transgender.


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