The justices voted 5-4, put a hold on a lower courts decisions that had previously blocked the administration’s planned ban from taking effect. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented. By allowing the ban to take effect, the court gave Trump’s administration a clear victory and may have tipped their hand that they would ultimately uphold the restrictions.
There have been open transgender troops serving since 2016, after POTUS Obama’s administration began lifting a longstanding restriction. Those who oppose the ban say that reinstating the ban would be a violation of the U.S. Constitution’s equal protection clause.
“This case is about whether men and women who want to serve in the United States Armed Forces to protect their country and who are able and otherwise qualified to do so should be barred from military service because they are transgender,” according to court filings on behalf of current and prospective military members.
The administration said in courts should defer to the Defense Department’s judgment. A 2018 Pentagon report said that having transgender troops “risks unnecessarily adding to the challenges faced by leaders at all levels, potentially fraying unit cohesion, and threatening good order and discipline.”
The study was commissioned by then-Defense-Secretary James Mattis following a 2017 tweet that went out by POTUS Trump that read the government would “not accept or allow transgender individuals to serve in any capacity in the U.S. Military.” Mattis said he was not consulted before the tweet. He left the Trump administration near the end of 2018.
The administration’s policy is less absolute than POTUS Trump’s tweet. It lets people continue to serve if they began transitioning their gender in reliance on the Obama policy. But the new policy would bar anyone from starting gender transition while in the armed forces. The policy would also block people from joining the military if they have already transitioned.
Estimates on just how many transgender people currently serve in the U.S. military vary. In a 2016 Rand study estimated that there are between 1,360 and 6,630 transgender people on active duty. The Mattis report said that since June 2016, about 900 people on active duty have been diagnosed with gender dysphoria – the medical term for a conflict between one’s physical gender and the gender with which the person identifies. The report goes on to state that a 2016 survey of the military found that almost 9,000 people identified as transgender.
U.S. Solicitor General Noel Francisco told the justices the issue was one of “imperative public importance,” thus warranting special fast-track consideration. He said an immediate review was needed “to ensure that the injunction does not remain in place any longer than is necessary.”
Critics of the policy are saying that the administration was improperly rushing the issue.
“Openly transgender persons have been serving in the military for two and a half years and leaders from each branch have testified that their service has not harmed the military,” Washington Attorney General Bob Ferguson argued in court papers. “Although the government cries that the sky is falling, it has offered no evidence to support its dire claims.”
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