The Justice Department last month urged the Supreme Court to bypass lower courts and immediately take up the the legal battle over transgender military service. Now, three weeks later, the DOJ has asked the high court to allow the trans military ban to take effect on an interim basis.
Solicitor General Noel Francisco filed three separate briefs on Thursday requesting that the court — if it does not leapfrog lower courts and take up the trans military issue this term — allow the government to enforce its ban as the issue plays out in the legal system.
Francisco, in all three briefs, said that a nationwide preliminary injunction on the ban imposed by lower courts had caused "direct, irreparable injury to the interests of the government and the public.”
He said the department was being forced "to maintain a policy that it has determined poses ‘substantial risks’ and ‘threatens to undermine, disrupt unit cohesion and impose an unreasonable burden on the military that is not conducive to military effectiveness and lethality.’”
The DOJ has requested that the Supreme Court consider two alternate requests made by the government in early January. As NBC News reported, the high court has agreed only about a dozen times in the past century to take a case so quickly and bypass the federal appeals courts. These exceptions have typically involved a national emergency.
The Trump administration’s transgender military ban was announced in a surprise tweet posted by President Donald Trump in July 2017, when he declared he would reverse an Obama-era plan to allow trans individuals to serve openly. Six months later, Defense Secretary James Mattis proposed a modified policy, ultimately approved by the president, that would allow trans individuals to serve, but only if they did not seek gender transition and agreed to serve "in their biological sex."
The Mattis policy was immediately challenged, and four federal courts issued orders forbidding the government to enforce it. U.S. District Court Judge Marsha Pechman of Seattle said that "discrimination against transgender people clearly is unrelated to their ability to perform and contribute to society."
Peter Renn, an attorney with LGBTQ civil rights group Lambda Legal, one of the organizations fighting the administration's trans military ban in court, said it's "quite remarkable how badly this administration suddenly wants to start discriminating."
"The 9th Circuit denied a stay five months ago, and transgender troops have continued doing their duty, protecting our country and serving openly for two-and-a-half years now. Nothing has changed since then," Renn said in an email. "But not only does the Trump-Pence administration want to cut in line and forgo the normal process in which courts evaluate cases — asking the Supreme Court to weigh in before any appellate court has ruled — the administration also wants a green light so that they can begin kicking out transgender troops if their leap-frog attempt doesn’t succeed."
"There is no basis for this eleventh-hour tactic, much less the threatened ban to begin with," Renn said, "and we look forward to making that case."