Supreme Court Should Maintain Injunction Against Implementation of Discriminatory Transgender Military Ban

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December 28, 2018
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Clients in our case with OutServe-SLDN against the Trans Military Ban.

Lambda Legal today urged the U.S. Supreme Court to deny a request from the U.S. Department of Justice (DOJ) asking the Court to stay enforcement of the preliminary injunctions that have kept the Trump administration from implementing its discriminatory plan to ban transgender people from serving openly in the U.S. Armed Services.

DOJ has asked the Supreme Court to stay enforcement of the injunctions should the Court deny the Trump-Pence administration’s petition for review of the preliminary injunction rulings before federal Courts of Appeal have the opportunity to rule. One of the three preliminary injunctions includes the injunction issued by 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.

“The sudden urgency of the Trump administration’s effort to discriminate against transgender service members is bordering on the ridiculous,” Lambda Legal Counsel Peter Renn said.

“Not only has it sought to short-circuit established practice by seeking Supreme Court review before the Courts of Appeal have ruled, but now it wants to be able to implement the ban to kick out transgender service members even if the Court denies that petition. Notwithstanding the fact that every court to rule on the discriminatory ban has ruled against it, the Trump administration seems intent on doing everything in its power to enshrine discrimination.

“All this comes five months after the Ninth Circuit Court of Appeals denied a similar request to stay the injunction, and two-and-a-half years since transgender troops were able to serve openly,” Renn added. “There has been exactly zero diminution of readiness, and exactly zero disruption of unit cohesion.

"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 and constantly evolving rationalizations, that rank bigotry remains the only justification for the discriminatory ban, and the Court should keep the preliminary injunctions preventing implementation of the ban in force.”

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.