Trump Asks Supreme Court to Intervene Now and Implement the Transgender Military Ban—Even Though Four Federal Courts Have Blocked It
Attempting to leap frog the ordinary appeals process, the Trump Administration quietly files petitions for cert before judgment over holiday weekend
The Trump Administration filed petitions for cert before judgment in three cases challenging Trump’s transgender military ban: Doe v. Trump, Stockman v. Trump, and Karnoski v. Trump. The National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates & Defenders (GLAD), who represent plaintiffs in both Doe and Stockman and were the first to challenge the ban, characterized the filing as an unusual attempt by the administration to bypass the standard appeals process.
There are four lawsuits in total challenging the transgender military ban, and all four federal courts to hear these cases have issued preliminary injunctions halting the ban from moving forward while the case is being heard in court. In issuing the preliminary injunctions, the courts each determined that the plaintiffs challenging the ban—who include current servicemembers, ROTC and military academy students and enlistees—would ultimately prevail. If the Supreme Court were to grant the administration’s request, it would consider this term whether to lift the injunction while the cases proceed in the lower courts. Excluding transgender people who meet military standards undermines readiness and would dramatically upend the lives and families of thousands of trans servicemembers and enlistees, and disrupt the military as a whole.
“There is no urgency here and no reason for the Court to weigh in at this juncture,” said Jennifer Levi, GLAD Transgender Rights Project Director. “The injunctions preserve the status quo of the open service policy that was thoroughly vetted by the military itself and has been in place now for more than two years. This is simply one more attempt by a reckless Trump administration to push through a discriminatory policy. The policy flies in the face of military research and dozens of top military experts.”
“The great majority of people in this country recognize that transgender people who can meet the same standards as others should have an equal opportunity to serve,” said Shannon Minter, NCLR Legal Director. Allowing President Trump’s ban to be implemented would upend thousands of lives and weaken our Armed Forces.”
“As Americans come together and give thanks for the sacrifices made by our brave servicemembers and their families, the Trump-Pence Administration is focused on undermining our military by tripling down on this discriminatory ban,” said Rick Zbur, Executive Director of Equality California which brought the Stockman case on behalf its members. “There are thousands of transgender service members bravely serving the nation with distinction. The Administration ought to be thanking them for their service—not trying to score political points by purging them from our military.”
Oral argument in Doe v. Trump is currently scheduled to be held on December 10 in the D.C. Circuit Court of Appeals.
For more information, go to NCLR and GLAD’s website outlining the history and status of the Trump-Pence transgender military ban https://notransmilitaryban.org/.
June 30, 2016: The United States Department of Defense (DOD) adopted a policy permitting transgender people to serve in the military based on a nearly two year DOD review determining that there was no valid reason to exclude qualified personnel from military service simply because they are transgender.
July 26, 2017: President Trump tweeted that “the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.”
August 9, 2017: NCLR and GLAD filed Doe v. Trump, the first lawsuit filed to stop the ban, challenging its constitutionality and requesting that the court issue a nationwide preliminary injunction to stop it from taking effect while the case is being heard in court.
August 25, 2017: President Trump issued a memorandum ordering Secretary of Defense James Mattis to submit “a plan for implementing” the ban by February 21, 2018. Secretary Mattis delivered this (the “Mattis Plan” and panel report) to President Trump on February 22, 2018.
October 30, 2017: The United States District Court for the District of Columbia ruled that Doe v. Trump plaintiffs had established a likelihood of success on their claim that President Trump’s ban violates equal protection, that plaintiffs would be irreparably harmed without a preliminary injunction to stop the ban, and that the public interest and balance of hardships weighed in favor of granting injunctive relief and temporarily halting the ban while the case is heard by the court.
March 23, 2018: President Trump accepts the “Mattis Plan” and issues a memorandum in which he “revoked” his August 25 Memorandum.
April 20, 2018: Defendants file a motion to dissolve the October 30 nationwide preliminary injunction enjoining the transgender military ban issued by the U.S. District Court for the District of Columbia; a motion to dismiss Plaintiffs’ Second Amended Complaint; and a Motion for Summary Judgment.
May 11, 2018: Plaintiffs file their cross-motion for summary judgment, as well as motions in opposition to Defendant’s motions to dissolve the injunction and dismiss Plaintiffs’ complaint.
August 6, 2018: Judge Colleen Kollar-Kotelly denies Defendants’ Motion to Dismiss and Motion to Dissolve the Preliminary Injunction.
August 27, 2018: Defendants filed a notice of appeal to the D.C. Circuit Court of Appeals of Judge Kollar-Kotelly’s denial of their motion to dissolve the preliminary injunction preventing enforcement of the transgender military ban.
September 21, 2018: The Defendants-Appellants filed their opening brief in the D.C. Circuit Court of Appeals.
October 22, 2018: Plaintiffs-Appellees filed their opposition to Defendants’ appeal, asking the D.C. Circuit Court of Appeals to leave in place the preliminary injunction blocking enforcement of the transgender military ban.
October 29, 2018: A wide array of former military leaders, veterans’ and civil rights organizations, women’s groups, military scholars and historians, and states went on record opposing President Trump’s ongoing efforts to exclude transgender people from military service, in thirteen friend-of-the-court briefs filed in the United States Court of Appeals for the District of Columbia.
NCLR and GLAD have been at the center of the legal fight challenging the Trump-Pence transgender military ban since filing Doe v. Trump, the first of four cases filed against the ban, on August 9, 2017.
Through strategic litigation, public policy advocacy, and education, GLBTQ Legal Advocates & Defenders works in New England and nationally to create a just society free of discrimination based on gender identity and expression, HIV status, and sexual orientation. www.GLAD.org
The National Center for Lesbian Rights (NCLR) was the first national LGBTQ legal organization founded by women and brings a fierce, longstanding commitment to racial and economic justice and our community’s most vulnerable. Since 1977, we have been at the forefront of advancing the civil and human rights of LGBTQ people and their families through impact litigation, public policy, and public education. Decades ago, NCLR launched the first LGBTQ Immigration Project, Transgender Rights Project, Youth Project, Elder Law Project, and began working to end conversion therapy through what is now our Born Perfect campaign. www.nclrights.org
Equality California is the nation’s largest statewide LGBTQ civil rights organization. We bring the voices of LGBTQ people and allies to institutions of power in California and across the United States, striving to create a world that is healthy, just, and fully equal for all LGBTQ people. We advance civil rights and social justice by inspiring, advocating and mobilizing through an inclusive movement that works tirelessly on behalf of those we serve. www.EQCA.org