Supreme Court Allows Trump Administration to Implement Transgender Restrictions in Military
By Brent Kendall
The Wall Street Journal
January 22, 2019
WASHINGTON—The Supreme Court intervened on a Trump administration priority Tuesday by allowing restrictions on military service by transgender individuals to be put in place.
On transgender service, the court issued brief written orders that temporarily blocked the effect of multiple lower court rulings preventing President Trump and the Pentagon from implementing restrictions announced in 2017.
The court split along ideological lines, with the court’s five conservatives in the majority and the court’s four liberals in dissent.
The action isn’t a ruling on the merits of the restrictions and justices declined to take up full consideration of the case right now while lower-court proceedings continue. Justices didn’t explain their reasoning, though the court’s move suggests that a majority of justices may be inclined to uphold the restrictions when the case returns to the Supreme Court.
The legal dispute about transgender military service began after Mr. Trump announced his administration was reversing the Obama administration’s policy of accepting transgender recruits. The president made the announcement on Twitter in July 2017, and then followed it a month later with a memorandum ordering the military to return to the pre-Obama approach, citing a need to ensure military effectiveness and avoid disruptions.
Judges said Mr. Trump’s restrictions appeared to be based on a desire to express disapproval of transgender people rather than legitimate concerns about military readiness. Courts cited military studies that found allowing transgender personnel wouldn’t harm military effectiveness.
While the cases were proceeding, then-Defense Secretary Jim Mattis convened a panel to study the issue and used the group’s recommendations to adopt the current policy, which Mr. Trump has approved. The administration said the new restrictions aren’t a flat ban on service and have some differences from what Mr. Trump ordered in 2017. Some individuals would be allowed to serve, so long as they did so in their biological sex, the administration says. The policy also contains exceptions for transgender people who have been serving openly during the interim period when the Obama-era plan has been in effect.
The Pentagon said the policy isn’t a ban on service by transgender persons. It said the proposed policy “is based on professional military judgment and will ensure that the U.S. Armed Forces remain the most lethal and combat effective fighting force in the world.”
Legal challengers, including current service members and prospective recruits, say the Mattis policy is still effectively a ban, one that just uses different terms and provisions to exclude transgender people.
“For more than 30 months, transgender troops have been serving our country openly with valor and distinction, but now the rug has been ripped out from under them, once again,” said Peter Renn, legal counsel for civil-rights group Lambda Legal.
One appeals court recently dissolved an injunction that had blocked implementation of the transgender restrictions for now, suggesting the Mattis policy appeared to address some deficiencies in Mr. Trump’s initial approach.
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