Lambda Legal: DOJ Request for Supreme Court Review on Transgender Military Ban is Premature

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November 23, 2018
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Three of our individual clients in our case with OutServe-SLDN against the transgender military ban.

The U.S. Department of Justice (DOJ) today asked the U.S. Supreme Court to review three preliminary federal district court rulings that have kept the Trump administration from implementing its discriminatory plan to prevent transgender people from serving in the U.S. Armed Services.

The three preliminary rulings include one out of the U.S. District Court for the Western District of Washington in the lawsuit brought by Lambda Legal and OutServe-SLDN and joined by the State of Washington challenging the constitutionality of the proposed ban.

“Today, the U.S. Department of Justice announced its intent to short-circuit established practice, asking the U.S. Supreme Court to review a preliminary district court ruling before the Ninth Circuit Court of Appeals has even had an opportunity to rule,” Lambda Legal Counsel Peter Renn said.

“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. 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.”

“It is unconscionable that the Trump administration seems to be in such a rush to discriminate against perfectly qualified soldiers, sailors, marines and air force pilots, and patriotic Americans seeking only to serve their country,” said Andy Blevins, Executive Director, OutServe-SLDN. “Let the Ninth Circuit have the opportunity to rule on this preliminary issue on appeal.  Let the process play out as it should.”

Lambda Legal and OutServe-SLDN filed the lawsuit, Karnoski v. Trump, in August 2017, on behalf of nine individual plaintiffs and three organizational plaintiffs – the Human Rights Campaign (HRC), Seattle-based Gender Justice League, and the American Military Partner Association (AMPA).

The State of Washington later joined the lawsuit. 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 Trump-Pence administration's desperate desire to discriminate against transgender service members knows no bounds," said HRC National Press Secretary Sarah McBride.

"The administration is in a rush because they know that every day that transgender people continue to enlist and serve with distinction is another day that the courts and the public see this irrational policy for what it is. There is simply no reason to circumvent the traditional judicial process in pursuit of banning qualified, patriotic Americans from serving their country, and we thank Lambda Legal and Outserve-SLDN for their representation in this critical case."

In addition to Karnoski v. Trump, the administration also asked the Supreme Court to review the preliminary ruling in Stockman v. Trump and Doe v. Trump, lawsuits also challenging the ban filed by the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates & Defenders (GLAD).

Doe v. Trump was filed in the U.S. District Court for the District of Columbia that DOJ appealed to the U.S. Court of Appeals for the District of Columbia. Stockman v. Trump was filed in the U.S. District Court for the Central District of California and is also on appeal to the Ninth Circuit.

Read the petition here: https://www.lambdalegal.org/in-court/legal-docs/karnoski_wa_20181123_petition-for-cert and read the letter for petition here: https://www.lambdalegal.org/in-court/legal-docs/karnoski_wa_20181123_letter-for-petition-of-cert

The Lambda Legal attorneys working on the case are: Peter Renn, Diana Flynn, Camilla B. Taylor, Tara Borelli, Paul Castillo, Sasha Buchert and Kara Ingelhart. They are joined by co-counsel Peter Perkowski of OutServe-SLDN. Also on the legal team are pro-bono co-counsel at Kirkland & Ellis LLP and Newman Du Wors LLP.