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Andrew Harnik/Getty Images North America
The U.S. Supreme Court on Tuesday allowed the Trump administration to begin executing its ban on transgender military service members, at least for now. The justices blocked a lower court order that temporarily halted the ban’s enforcement.
The court’s three liberals said they would have denied the application.
Shortly after President Trump was sworn in for the second time, he signed an executive order banning transgender individuals from serving in the military.
The Defense Department promptly barred transgender individuals from enlisting and discharged active duty soldiers as well.
The new policy mimics a previous transgender military ban established during the first Trump Administration. The Supreme Court allowed that controversial Trump policy to remain in place in 2019, but it was reversed by President Biden shortly after he took office.
This time, however, by discharging active duty transgender service members in addition to banning their enlistment, the policy goes further than the policy enacted during the first Trump administration. The justification for the ban has also changed.
Rather than explicitly banning all transgender service members from the military, the Defense Department listed “gender dysphoria”– the “marked incongruence” between a person’s experienced gender and their gender assigned at birth–on its list of medical conditions that disqualify people from military service.
According to the Pentagon, about 0.2% of the U.S. military members experience gender dysphoria.
The challenge to the ban was brought by a group of current and aspiring transgender service members, including lead plaintiff Emily Schilling, a Navy pilot who has flown more than 60 combat missions over her nearly two decades of service. The group argued that the ban denied them their constitutional right to equal protection of the law.
The government countered that because the Pentagon’s policies were directed at those with gender dysphoria as a “medical condition,” rather than targeting transgender individuals outright, the ban did not discriminate against anyone based on their transgender status.
Judge Benjamin Settle, a George W. Bush appointee who serves in Washington state, rejected that argument. He called the policy “a blanket prohibition on transgender service.” And he temporarily blocked the administration from enforcing the policy while he considered the case further.
Settle said the administration could not hide behind its assertion that banning those with gender dysphoria was any different than banning someone because they are transgender. “Common sense” showed that these were one in the same, he said.
A federal appeals court in San Francisco refused to intervene, and the Trump administration then appealed to the Supreme Court, seeking reinstatement of the ban.
In response, the service members contended that the ban is unconstitutional because it was motivated by hostility toward transgender people. In addition they cited studies previously conducted by the Defense Department and the military, indicating that transgender service members are not a threat to national security, a conclusion that they contend was echoed by four years of experience with transgender individuals in the military during the Biden administration.
On Tuesday, however, the Supreme Court ruled in favor of the Trump administration, allowing it to proceed with its anti-trans ban, at least for now. The order is a strong indicator that the administration is ultimately likely to prevail.
In a statement Tuesday, Lambda Legal and Human Rights Campaign, the groups that brought the lawsuit on behalf of the service members, called the “ruling … a devastating blow to transgender servicemembers.”
“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,” the groups said in a statement.
