Jennifer Levi, left, and Sarah McBride
Trump administration petitions SCOTUS to rule on military trans ban before appeals courts have a chance to
Lisa Keen | Keen News Service
The Trump administration has petitioned the U.S. Supreme Court to vacate a national injunction currently blocking the president’s proposed ban on transgender people in the military. The administration tried this procedural move in September in one of four lawsuits challenging the transgender ban. But the earlier request was more complicated than just ending the injunction, and the administration eventually withdrew it.
In response, the Supreme Court has given attorneys for the parties challenging the ban until Dec. 24 to file briefs regarding the injunction request. The administration will then be given a chance to reply to that brief. So it will likely be January or later before the Supreme Court either grants or denies the administration’s request to review its arguments to vacate the injunction.
In his Nov. 23 petition to the high court, Solicitor General Noel Francisco argued that waiting for the normal judicial process to run its course would jeopardize the “readiness, good order and discipline, sound leadership and unit cohesion” that are “essential to military effectiveness and lethality.”
The administration’s petition asks SCOTUS to intervene now in three of four lawsuits where a district court has put an injunction in place. It also asks the court to rule on the “overall dispute.”
Jennifer Levi, director of the transgender project for LGBTQ Gay and Lesbian Advocates and Defenders (GLAD), says the issue before the court is on the injunction, but the court could take up the transgender ban itself.
“There are a number of things that make the request extraordinary,” Levi explained. “One is that they are leapfrogging the appeals process in filing a cert petition before judgment from the appeals courts. The other is that they are angling to try to get the court to review the constitutionality of the ban — on the merits. Both are extraordinary and not supported by precedent. But time will tell, of course, what the court decides to do.”
And the court, Levi added, “can do whatever it wants.”
The timing of the administration’s request puts it up against another extraordinary moment in the history of the Supreme Court and the White House: Two days before the administration filed its petition with the Supreme Court, President Trump derided the Ninth Circuit U.S. Court of Appeals — where two of the four transgender ban cases are pending — as a “disgrace.” He was angry that a district judge in the Ninth Circuit had blocked his executive order to severely restrict the ability of immigrants to apply for asylum.
In an extremely rare move, Chief Justice John Roberts responded by rebuffing Trump’s suggestion that a federal judge appointed by President Obama was biased against Trump when he issued a temporary national injunction against Trump’s asylum plan.
Roberts told Associated Press, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. The independent judiciary is something we should all be thankful for.”
Because a public statement with such political implications from the chief justice is such a rare event, Roberts’ comment was widely publicized and discussed. President Trump then attempted a response on Twitter, saying, “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.”
With the transgender ban injunction, three out of four lawsuits have been granted a national injunction pending judicial review of the constitutionality of the ban. Those three are from Los Angeles (Stockman v. Trump), from Washington State (Karnoski v. Trump), and from the District of Columbia (Doe v. Trump).
The latter case is the one that prompted the administration’s first request for Supreme Court intervention. In September, a judge for the federal district court in Washington, D.C., ruled that a revised policy banning transgender people was “essentially the same” as the original policy Trump announced in 2017. She refused to vacate the initial national injunction.
The Trump petition filed Nov. 23 suggests all four cases could be consolidated on a review of the constitutionality of the proposed ban. The fourth case is from Maryland (Stone v. Trump).
All were filed soon after Trump announced in 2017 that he intended to ban transgender people from the military. He later “revised” the wording of the proposal to ban, with few exceptions, anyone with a history of gender dysphoria and require those without gender dysphoria to dress consistent with their identified gender at birth.
GLAD, which along with the National Center for Lesbian Rights, is representing plaintiffs in two of the lawsuits, says that vacating the injunction alone would “dramatically upend the lives and families of thousands of trans service members and enlistees, and disrupt the military as a whole.”
Lambda Legal, which is leading one of the Ninth Circuit lawsuits, called the Trump petition to the Supreme Court “wildly premature and inappropriate.”
“It seems the Trump administration can’t wait to discriminate,” said Lambda attorney Peter Renn. “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.”
Of the three cases cited in Trump’s petition, all have cleared the district court phase on the issue of an injunction against the policy. But only one has reached the three-judge appeals panel phase on the injunction issue and that panel has not yet issued its opinion. No court has yet to hear arguments on the constitutionality of the proposed ban itself.
Sarah McBride, a national spokesperson for the Human Rights Campaign which is a plaintiff in one of the four lawsuits, said she believes Trump officials are trying to circumvent normal judicial procedure “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.” █
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