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SCOTUS Analysis: Transgender military service

Timothy R. Holbrook |
Timothy R. Holbrook
Timothy R. Holbrook
Asa Griggs Candler Professor of Law

At the end of each Supreme Court term, the media, commentators and scholars pore over the court’s decisions for kernels of insights, for soundbites that will grab attention, and for an assessment of the scope and impact of the court’s decisions. This ritual repeats annually at the end of June, when each term ends.

But sometimes, significant impact arises in the unobserved work of the Supreme Court, even while it is in session. The court often issues orders that appear to deal with procedural issues. But even those seemingly innocuous decisions can have significant impact. Such a scenario arose during the October 2018 Supreme Court term as it relates to the ability of transgender persons to serve in the military.

In 2016, President Obama reversed the military’s ban on transgender persons, paving the way for trans soldiers to serve their country openly without fear of being discharged.

President Trump announced a change in this policy by a tweet in July 2017. The actual articulation of the policy required a variety of iterations. Finally, in March 2018, the Trump administration banned from military service “transgender persons with a history or diagnosis of gender dysphoria — individuals who the policies state may require substantial medical treatment, including medications and surgery—are disqualified from military service except under certain limited circumstances.” The policy also refused to permit health care related to gender affirming medical interventions.

This policy effectively requires all trans people to maintain the gender assigned to them at birth and precludes them from living authentically in their true gender identity.

Unsurprisingly, the various articulations of the policy were challenged in court, and lower courts preliminary enjoined implementation of the policy. These injunctions permitted the Obama administration’s policy to remain in force until the courts could decide the cases on the merits.

The U.S. government appealed to the Supreme Court, both to lift these injunctions and also to hear the cases immediately on the merits. While the court refused the latter request, it did stay the various injunctions on the implementation of the transgender military ban. Four of the justices—Ginsburg, Breyer, Kagan, and Sotomayor—would have left the preliminary injunctions in place.

But one may not have realized that consequences of the court’s action by merely reading the language of the order. In antiseptic fashion, it states that the “order granting a preliminary injunction is stayed pending disposition of the Government’s appeal….” The dissent of the above four justices is recorded by simply noting they “would deny the application.”

What these words actually mean, however, is that the military can implement the policy, precluding trans persons from joining the military and prohibiting current service members from transitioning. To serve in the military, trans persons must remain in the closet and live a life inconsistent with their gender identity.

Indeed, on March 12, 2019, the military did just that, issuing a memorandum to begin enforcing the ban. The Supreme Court’s stay of the injunction, therefore, will impact the lives of numerous trans persons currently in the military and those who would like to join.  

At some level, the court’s actions were not surprising. Presidents are given broad discretion in implementing military policy, and concerns about military readiness are rarely second-guessed by the courts.

But the court’s action does highlight the importance of even the nondescript orders issued by the court, particularly those that say so little about the case in front of it.

And, for members of the lesbian, gay, bisexual, transgender and queer (LGBTQ) community, the court’s stay of the injunction is a harbinger of difficult times in the future. Although the Supreme Court ushered in national marriage equality in 2015, Justice Kennedy’s retirement and the appointment of Justice Kavanaugh have made many fear not merely the halt of the advancement of LGBTQ rights, but potential regression. In its October 2019 term, the court will address whether federal nondiscrimination laws protect against discrimination based on sexual orientation and gender identity. The Supreme Court’s action on the military ban does not leave LGBTQ persons feeling hopeful. And who knows whether some states will pass laws banning marriage equality in hopes of reversing that decision.

The tea leaves at times can be found not in the Supreme Court’s lengthy decisions but also in its nondescript orders.

Timothy R. Holbrook
Asa Griggs Candler Professor of Law