Trump administration pushes for SCOTUS to review transgender military ban


WASHINGTON — The Trump administration asked the U.S. Supreme Court to review the administration’s ban on transgender people in the military.

Challenges to the ban are still working through the lower courts. The Washington Post reported that Solicitor General Noel J. Francisco has asked the court to consolidate the challenges and make a ruling during the current term. The challenges have been largely successful in the lower courts.

“This highly unusual step is wildly premature and inappropriate, both because there is no final judgment in the case, and because even the preliminary issue on appeal has not yet been decided,” said Lambda Legal counsel Peter Renn. ‘It seems the Trump administration can’t wait to discriminate. Yet again, the Trump administration flouts established norms and procedures. There is no valid reason to jump the line now and seek U.S. Supreme Court review before the appellate courts have even ruled on the preliminary issues before them.”

Lambda Legal, along with OutServe-SLDN, filed one of the challenges to the ban. The district court in December 2017, granted the plaintiffs motion for a preliminary injunction preventing implementation of the ban, which DOJ chose not to challenge on appeal, and the court reaffirmed that preliminary ruling in April after the Trump administration released an implementation plan. The administration appealed that latter ruling to the Ninth Circuit Court of Appeals, which heard oral argument on October 10, 2018.  The Ninth Circuit previously denied DOJ’s request to stay the preliminary injunction during the appeal, thereby allowing transgender people to continue serving, and DOJ declined to ask the Supreme Court for a stay while the appeal proceeded.

The military ban was the first major anti-LGBTQ action the administration took last year. It has been followed by others. The latest one, according to ThinkProgress is the removal of any guidance protecting transgender workers from the Office of Personnal Management website.

The Post reported that the administration has reacted aggressively whenever the courts have ruled against it. It repeatedly asked the Supreme Court to take cases before running through the appeals process, not always successfully. The newspaper said that the administration has been criticized for the requests.

“Under Trump, the Justice Department has shown little respect to judges who rule against it — or who don’t rule for it quickly enough,” Joshua Matz, a lawyer who filed an amicus brief on behalf of the transgender ban, wrote in a recent op-ed in the Post.

“Trump’s lawyers fail to understand that the government is not entitled to play leapfrog whenever it loses in federal court. If the department’s battery of ‘emergency’ petitions were granted, they would immediately overload the Supreme Court docket with politically fraught challenges to Trump administration policies.”