When President Donald Trump first announced a ban on transgender people in the military, the outcry was fierce: Activists decried the decision for violating civil rights, experts highlighted research debunking the president’s claims, and federal courts blocked the administration’s policy. Now, the Supreme Court has chosen to put two of these rulings on hold, allowing the ban to continue temporarily, in what’s seen as a win for the Trump administration—and a devastating loss for thousands of active transgender service members.
The court’s decision has also raised questions about the ban’s future challenges and immediate effects. Here are the answers to some of those questions.
What Happened on Tuesday?
In a 5–4 vote led by its conservative majority, the Supreme Court lifted injunctions preventing the transgender service ban from going into effect, as previously issued in two lower court rulings: Trump v. Karnoski and Trump v. Stockman, according to the Brookings Institute’s Lawfare blog. This decision will allow the ban to continue temporarily, but it’s not the final word from the Supreme Court.
Tuesday’s decision was two-fold: First, the justices declined to hear legal challenges to the ban this term, leaving the possibility open for future litigation, such as the case pending in a California-based federal appeals court. In denying the Trump administration’s request to rule on these cases’ legal merits, the justices have given the lower courts a chance to weigh in, as is the Supreme Court’s standard practice, according to Reuters. (Even so, liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan said they would have denied the application, the Hill reports.)
However, while these cases proceed, the court also decided to allow the ban to go into effect, sanctioning the ban’s immediate impact.
What Are the Experts Saying?
LGBTQ advocates and civil rights organizations challenging the ban have largely applauded the court’s decision not to review the ban’s legality now, avoiding what some see as political pressure from Trump to end this fight before it begins. But they also say that even a temporary ban will harm transgender individuals serving or looking to serve in all branches of the military.
“In declining to hear these cases, the Supreme Court saw through the administration’s contrived efforts to gin up a national crisis,” Jennifer Levi, project director at GLBTQ Legal Advocates & Defenders, said in a statement. “Unfortunately, the [Supreme Court’s] stay of the lower courts’ preliminary orders means that courageous transgender service members will face discharges while challenges to the ban go forward.”
As Pacific Standard has reported, the ban excludes transgender people who are already serving, but anyone who wants to transition during their service will risk discharge.
While advocates worry about the chilling effect this might have on transgender people, they also maintain that the ban violates the United States Constitution’s guarantee of equal protection. “Multiple federal courts have recognized that excluding qualified individuals simply because they are transgender is contrary to basic constitutional principles of equality and fairness,” said Shannon Minter, legal director of the National Center for Lesbian Rights.
California Attorney General Xavier Becerra, who is challenging the ban alongside Equity California and transgender plaintiffs in one of the two cases in question, pledged to continue to protect transgender service members in a statement on Tuesday. “This is 2019, not 1920,” he said.
Who Will This Affect?
Estimates vary, but studies suggest there are thousands of transgender people on active duty in the U.S.—anywhere from 1,000 to over 6,000 (out of a total of 1.3 million service members), according to one commonly cited 2016 report. In their analysis, political scientists at RAND also found that only a small portion of these service members would seek the transition-related treatments that the Trump administration has claimed would increase costs and decrease deployment.
Before the Obama-era reversal in 2016, transgender people had long been barred from serving openly in the military, “despite the fact that recent studies show that about one-fifth of all transgender adults are veterans, making transgender people approximately twice as likely as others to serve in the military,” representatives for the American Civil Liberties Union said in a statement.
Tuesday’s decision—which some reports have suggested is a portent of the ruling to come—could keep thousands of people from serving in the military, or push them back into the closet and away from vital medical resources.
