WASHINGTON – The Supreme Court will allow President Donald Trump’s partial ban on transgender people serving in the military to take effect while court challenges continue.
Responding to Justice Department requests, the high court Tuesday cleared away lower-court actions that blocked the controversial policy from being implemented for nearly a year.
The court’s four liberal justices – Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – said they would have continued to block the policy. They were overruled by the five conservative justices.
However, the court refused to hear the case this term, before the Trump administration fights its way through federal appeals courts. That will leave the legal questions surrounding the Pentagon’s policy unresolved for now.
The order represents a victory for the administration, which has railed against nationwide injunctions issued by local judges. Similar injunctions have thwarted efforts to deport undocumented immigrants who arrived as children, as well as asylum-seekers who cross the border illegally.
Justice Department spokeswoman Kerri Kupec hailed the court’s action.
“Due to lower courts issuing nationwide injunctions, our military had been forced to maintain a prior policy that poses a risk to military effectiveness and lethality for over a year,” Kupec said. ” We will continue to defend in the courts the authority and ability of the Pentagon to ensure the safety and security of the American people.”
The justices refused to hear the administration’s appeal in the transgender troops case, which means lower-court challenges can proceed. Four district court judges have blocked the policy, but a federal appeals court last week reversed one of those injunctions.
The high court’s action followed that ruling by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. It ruled that the policy had been fine-tuned by Pentagon officials over a period of months and no longer constituted a “blanket ban.”
Trump announced the policy in July 2017 with a tweet that said the government “will not accept or allow transgender individuals to serve in any capacity in the U.S. military.” He cited the costs incurred by the Pentagon for troops transitioning from one gender to the other.
Pentagon officials later reassured transgender troops that they would not be kicked out and that their medical care would not be interrupted until the policy was rolled out. Former Defense Secretary Jim Mattis unveiled it in March, with exceptions for those already serving and recruits who are not transitioning to the opposite sex.
Last week’s appeals court ruling took note of those changes and others.
“The government took substantial steps to cure the procedural deficiencies the court identified in the enjoined 2017 presidential memorandum,” the panel said. In addition to relying on Pentagon officials’ expertise, the judges said, the ban “appears to permit some transgender individuals to serve in the military.”
The Pentagon reiterated in a statement Tuesday that the policy is not a complete ban and that transgender troops will continue to be treated with respect and dignity.
“The Department of Defense’s 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,” said Air Force Lt. Col. Carla Gleason, a Pentagon spokeswoman.
Jennifer Levi of GLBTQ Legal Advocates & Defenders said the court’s action “means that courageous transgender service members will face discharges while challenges to the ban go forward.”
“The Trump administration’s cruel obsession with ridding our military of dedicated and capable service members because they happen to be transgender defies reason and cannot survive legal review,” Levi said.
With the policy blocked until now, dozens of transgender recruits have signed up since becoming eligible Jan. 1, 2018. They are among several thousand transgender troops estimated to be serving in the active-duty force of more than 1 million, according to a Rand Corp. study commissioned by the Pentagon in 2016.
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