A group of service members who are transgender asked the nation’s highest court to deny President Donald Trump’s request to bypass the lower courts and hear cases challenging his policy of barring transgender service members from the military.
On Monday, the respondents, a group of service members who are transgender and identified as Jane Doe 2, filed a brief requesting the Supreme Court to deny the president’s petition for a writ of certiorari, which is a request for the Court to hear a case. The Court receives about 7,000 each year but accepts only 100 to 150.
In opposition to Trump’s request for the High Court to rule on the legality of his policy prohibiting people who are transgender from serving in the military, the respondents argued that the case hasn’t been fully litigated in lower courts yet. Four cases challenging the ban have resulted in an injunction against it, and two are in appeal stages.
One case, Karnoski v. Trump, is in the 9th U.S. Circuit Court of Appeals awaiting an opinion. Another case, Doe v. Trump, was heard in the Court of Appeals for the District of Columbia Circuit this month. A decision in Stockman v. Trump is on hold pending the decision in Karnoski.
The writ of certiorari sought early review of those three cases. GLBTQ Legal Advocates & Defenders (GLAD) and the National Center for Lesbian Rights (NCLR) represent plaintiffs in the Doe and Stockman cases.
In the opposition brief, the respondents argued that although the case raises constitutional issues, it’s not the time for the High Court to review it because the U.S. Court of Appeals has not delivered its opinion. Instead of the administration presenting constitutional issues “in a suitable posture,” the brief said, the desire to expedite the case is solely about the government’s effort to dissolve the injunction.
The brief argued that nothing about a U.S. District Court decision to either grant an injunction or refuse to dissolve it justifies the Supreme Court’s reviewing the cases immediately. Ultimately, it requested that the High Court allow litigation to play out in the lower Court of Appeals before considering the cases, thereby denying the petition for certiorari.
“The Trump administration has demonstrated no urgency that would justify leapfrogging the normal appellate process, and the military’s own account shows no problems that need to be addressed,” NCLR Legal Director Shannon Minter said. “By the military’s own account, [the] inclusion of transgender service members makes our military stronger.”
GLAD Transgender Rights Project Director Jennifer Levi called the ban “cruel and baseless” and agreed with Minter that it weakens the military. Levi added that it’s vital for the High Court to maintain the integrity of the judicial process and allow litigation to occur in the lower courts first.
“Around the world, thousands of brave transgender service members are away from their families during the holiday season, serving our country with honor,” said Rick Zbur, executive director of Equality California. “But instead of thanking them for their service, President Trump is begging the Supreme Court to let his administration discriminate against them. It’s indefensible.”
In July 2017, Trump announced on Twitter that the federal government would no longer accept or allow people who are transgender to serve in the military. “Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous military costs and disruption that transgender in the military would entail,” he wrote on Twitter.
In February, Secretary of Defense James Mattis issued a memorandum addressing the president’s decision and explained that his recommendations came after a panel of experts was consulted. Mattis recommended that people who require or have undergone gender transition or have been diagnosed with gender dysphoria be disqualified from military service. However, exceptions could be made for people if certain criteria were met. His plan would reinstate the policy that was in place before President Barack Obama lifted the ban on openly transgender military members in June 2016.
If the Supreme Court grants the administration’s request, the cases would be heard this term. Along with the writ of certiorari, the administration asked the Court to allow the ban to go into effect. The plaintiffs are filing their opposition to that request on Friday.