The Supreme Court Should Deny Premature Request for Review of Transgender Military Ban Rulings

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December 26, 2018

Lambda Legal today urged the U.S. Supreme Court to deny a petition from the U.S. Department of Justice (DOJ) asking that the Court review three preliminary federal district court rulings that have kept the Trump administration from implementing its discriminatory plan to ban transgender people from serving openly in the U.S. Armed Services.

The three preliminary rulings include one from 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.

“There is no valid reason for the Trump-Pence administration to try to short-circuit established practice and ask for review before the federal Courts of Appeal have even had an opportunity to rule,” Lambda Legal Counsel Peter Renn said.

“It is mystifying why the Trump-Pence administration is suddenly so desperate to kick out transgender service members when it’s been already five months since the Ninth Circuit Court of Appeals denied an earlier stay request.

“Moreover, since transgender troops were able to serve openly starting two-and-a-half years ago, there has been no diminution of readiness, no disruption of unit cohesion.” Renn added.

“In fact, leaders of all branches of the U.S. Armed Services have testified that the implementation of open service has occurred smoothly and without incident. It is clear, notwithstanding the ginned-up rationalizations, that rank bigotry remains the only justification for the discriminatory ban, and the Court should allow the appellate courts to rule on the issues through the ordinary course.”

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 maintained that preliminary injunction in April after the Trump administration released a plan for implementing its discriminatory ban. 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.

In addition to Karnoski v. Trump, the administration also asked the Supreme Court to review the preliminary injunctions 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, and is pending on appeal at the U.S. Court of Appeals for the District of Columbia Circuit. Stockman v. Trump was filed in the U.S. District Court for the Central District of California and is also pending on appeal at the Ninth Circuit