US Supreme Court allows trans military ban, for now

The U.S. Supreme Court will allow the country’s armed forces to implement President Donald Trump’s ban on transgender servicemembers while the matter continues to be litigated in the federal courts.

The 6-3 ruling Tuesday from the country’s highest court stays a national injunction against enforcing the ban until the constitutional issues can be fully litigated in the lower courts. By issuing the stay, the Supreme Court’s conservative majority is allowing the Trump administration to enforce its ban until the 9th U.S. Circuit Court of Appeals and the high court can act on the constitutional issues involved.

The order is an ominous sign for LGBTQ advocates suing to have the ban be struck down and a devastating setback for trans servicemembers who now face being drummed out.

“The court has upended the lives of thousands of servicemembers without even the decency of explaining why,” stated Shannon Minter, a trans man who is vice president of legal at the National Center for Lesbian Rights, which has filed a different federal lawsuit challenging the trans military ban. “As a result of this decision, reached without benefit of full briefing or argument, brave troops who have dedicated their lives to the service of our country will be targeted and forced into a harsh administrative separation process usually reserved for misconduct. They have proven themselves time and time again and met the same standards as every other soldier, deploying in critical positions around the globe.

“This is a deeply sad day for our country,” Minter added.

As the Bay Area Reporter reported Tuesday morning, the plaintiffs NCLR is representing had filed an amicus brief asking the injunction against enforcing the ban remain in effect.

If this feels like déjà vu, it is. During the first Trump administration, the Supreme Court also issued an order enabling a Trump directive – first announced through a tweet – to take effect, pending a 9th Circuit ruling on the constitutional issues. That vote, in 2019, was 5-4 (The late Justice Ruth Bader Ginsburg has since been replaced with Trump appointee Amy Coney Barrett.)

Both Tuesday’s Supreme Court order and its actions in 2019 focused on servicemembers in Washington state and the 9th Circuit. There were four pending cases in 2019, and three today.

The subject of the new Supreme Court order May 6 is Shilling v. U.S., a case challenging Trump’s January 27 executive order entitled "Prioritizing Military Excellence and Readiness." Lambda Legal Defense and Education Fund filed the lawsuit on behalf of seven active duty transgender servicemembers, one transgender person who would like to serve, and the Gender Justice League. Federal district Judge Benjamin Settle in Seattle issued a stay of the Trump ban in March; and a three-judge panel of the 9th Circuit denied the Trump administration’s request in April for relief from that stay.

“Today's Supreme Court ruling is a devastating blow to transgender servicemembers who have demonstrated their capabilities and commitment to our nation's defense,” Lambda Legal and the Human Rights Campaign Foundation stated. “By allowing this discriminatory ban to take effect while our challenge continues, the court has temporarily sanctioned a policy that has nothing to do with military readiness and everything to do with prejudice. Transgender individuals meet the same standards and demonstrate the same values as all who serve. We remain steadfast in our belief that this ban violates constitutional guarantees of equal protection and will ultimately be struck down.”

The Trump administration applied to the Supreme Court for an emergency order to overcome the lower court stays. In response Tuesday, the justices granted that request, “pending the disposition of the appeal” in the 9th Circuit and the Supreme Court. Although no justice signed the order, it indicated three justices – liberals Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson – would have denied the Trump administration’s request.

Trump’s executive order in January rescinded an executive order issued by President Joe Biden in 2021, which undid Trump’s years prior order issued via Twitter and now known as X. The Biden executive order declared “all qualified Americans” could serve in the military.

In 2019, a three-judge panel of the 9th Circuit ruled that the Trump ban “must be evaluated … with the appropriate deference due to a proffered military decision.”

Two other legal cases have also been pushing back against the Trump ban. They are being jointly led by San Francisco-based NCLR and Gay and Lesbian Advocates and Defenders. The first of the three cases, Talbott v. USA, filed by NCLR in the U.S. District Court for the District of Columbia, led to a national injunction against the Trump ban. That was issued by Judge Ana Reyes, a lesbian Biden appointee. The second case, Ireland v. Hegseth, challenges the ban in federal court in New Jersey. A district court judge there ordered the Department of Defense not to enforce the ban.

Minter and GLAD attorney Jennifer Levi, who identifies as transgender, issued a statement Tuesday stating that the Supreme Court’s order allowing the ban to take effect – even though preliminary – will have a “devastating” effect on transgender servicemembers.

“Today’s decision,” Levi stated in a news release, “adds to the chaos and destruction caused by this administration.

“It’s not the end of the case, but the havoc it will wreak is devastating and irreparable,” Levi added.

The preliminary injunctions in place had protected transgender servicemembers and recruits from significant harms by preventing the Department of Defense from initiating separation proceedings or otherwise enforcing the ban, NCLR and GLAD noted. These harms included servicemembers being removed from deployments, denied commissions and promotions, placed on administrative leave, denied medically needed care, and ultimately being placed in involuntary separation proceedings, a process used to address instances of misconduct.

Other LGBTQ organizations also criticized the court’s decision.

In a statement, Equality California, the statewide LGBTQ rights organization, said the court got it wrong.

“Donald Trump’s cruel and baseless policy has nothing to do with military readiness or national security – and everything to do with hate and the weaponization of the federal government to discriminate against transgender people,” stated Tony Hoang, a gay man who is executive director of EQCA. “By refusing to intervene, the Supreme Court is complicit in allowing that hate to shape federal policy.

“Legal challenges to this discriminatory ban are still pending in federal appellate courts, and we remain hopeful that those courts will uphold the principles of fairness and equality,” Hoang added. “Multiple federal judges have already found the ban to be unconstitutional – a conclusion the highest court in the land should have also affirmed.”