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LGBT legal groups ask high court to hold off on trans military cases

by Lisa Keen

LGBT legal groups have asked the U.S. Supreme Court to hold off on hearing the trans military ban cases until the appeals process is completed. Photo: Courtesy ACLU
LGBT legal groups have asked the U.S. Supreme Court to hold off on hearing the trans military ban cases until the appeals process is completed. Photo: Courtesy ACLU  

LGBT legal groups told the U.S. Supreme Court last week that it is simply too soon for the court to become involved in litigation over President Donald Trump's proposed ban on transgender people in the military.

The Trump administration has asked the Supreme Court to dissolve national injunctions against implementation of its proposed transgender ban. But no appeals court has yet ruled on the injunctions. Typically, an issue reaches the Supreme Court only after being decided by a district court, then by a three-judge panel of an appeals court, and then by the full appeals court.

"The government's desire for an immediate resolution of this litigation is not a reason for the extraordinary exercise of this court's authority to review a case before the court of appeals has rendered a decision," said a brief from the National Center for Lesbian Rights and the GLBTQ Legal Advocates & Defenders. The two groups are jointly representing several transgender people in one of the lawsuits against the proposed ban (Doe v. Trump).

On Friday (January 4), the D.C. Circuit Court of Appeals ruled against trans service members and lifted the district court's order preventing the Trump administration from enforcing its ban on trans service members. Despite that ruling, which came in the Doe v. Trump case, three nationwide preliminary injunctions halting the ban remain in effect. This continues to block the ban while the cases proceed in federal district courts.

"Today's ruling is a devastating slap in the face to transgender service members who have proved their fitness to serve and their dedication to this country," NCLR legal director Shannon Minter said in a statement.

"The Trump administration's relentless attacks on transgender troops, including those who are currently deployed overseas, are appalling and legally baseless," Minter said in an earlier statement. "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. By the military's own account, inclusion of transgender service members makes our military stronger."

Equality California, which brought the Stockman v. Trump case, also joined in asking the high court not to hear the matters yet.

The groups noted that a district court has set a trial date of July for Stockman v. Trump in Los Angeles.

"The government offers no credible showing of urgency that justifies bypassing that careful and respectful consideration by the lower courts," states the brief.

The groups urged the Supreme Court to deny review of the injunction at this point and allow the trial on the constitutionality of the proposed ban to go forward.

Lambda Legal Defense and Education Fund, which is representing transgender service members in a third lawsuit, Karnoski v. Trump, also submitted a brief December 24, opposing the Trump administration's request that the Supreme Court dissolve the injunction.

All three appeals are on a list of cases to be considered by the justices in private conference January 11. There are a number of actions the justices could take at that time, including re-scheduling the cases for a later conference. But if four justices agree to hear Trump's appeal, the appeal will likely be slated for oral argument this spring.

The American Civil Liberties Union is representing a fourth group of service members in a lawsuit, Stone v. Trump. The Trump petition to the Supreme Court November 23 suggested the high court consolidate all four cases for a review of the constitutionality of the proposed ban.

Trump announced in 2017 that he intended to ban transgender people from the military. That proposal essentially sought to reverse a policy developed under Secretary of Defense Ashton Carter during the Obama administration. The so-called Carter Policy said service members would not be discharged or denied reenlistment "due solely to their gender identity or an expressed intent to transition genders."

The administration later revised the wording of Trump's original proposed ban, saying that, with few exceptions, anyone with a history of gender dysphoria be banned. It also says that transgender people without gender dysphoria can serve but only if they dress consistent with the gender stated on their original birth certificates. This latter policy resembles the "Don't Ask, Don't Tell" policy that banned openly gay service members for many years and was eventually repealed by Congress.

In addition to the transgender military ban cases, the Supreme Court has before it three cases testing whether Title VII of the Civil Rights Act can be used to prohibit discrimination based on sexual orientation and gender identity. Those cases have been scheduled for conference January 4.

An LGBT-related case, Aloha Bed and Breakfast v. Cervelli, from the Hawaii Supreme Court, asks whether the operator of a bed and breakfast can refuse to rent rooms to guests based on their sexual orientation by citing personal religious beliefs. This case, too, is on the January 4 conference list.

Another religious belief versus human rights law case is Klein v. Oregon. In that case, a state court found a baker violated a state law prohibiting sexual orientation discrimination in public accommodations when she refused to bake a wedding cake for a same-sex couple. Briefs are due January 25.

Finally, Doe v. Boyertown asks whether a school policy allowing transgender students to use the high school restroom and locker room consistent to their gender identity violates the constitutional rights of other students. Briefs for the case are due January 22.

Updated, 1/4/19: This article was updated to include Friday's court ruling.

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