Trump administration asks Supreme Court to allow ban on transgender military troops

WASHINGTON − The Trump administration is asking the Supreme Court to let the Defense Department ban transgender people from serving in the military while that policy change is being challenged by transgender servicemembers.

The Justice Department on April 24 said a lower court improperly second-guessed the Pentagon’s assessments of the risks of allowing transgender people to serve rather than given the military the “substantial deference” the Defense Department’s judgements are owed. 

The Supreme Court asked the servicemembers challenging the ban to respond to the government's request by May 1.

The ban was paused on March 27 by a federal judge in Washington state. A three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals denied the administration's request to let it enforce the policy for now.

The Justice Department says letting transgender people serve "undermines military readiness and lethality." U.S. District Judge Benjamin Settle, who was appointed by former President George W. Bush, said there's no evidence to support that.

“The government’s arguments are not persuasive, and it is not an especially close question on this record,” Settle said.

A federal judge in Washington, D.C., reached a similar conclusion on March 18 in a related challenge by transgender members of the military. U.S. District Judge Ana Reyes' order temporarily blocking enforcement of the policy is on hold while it's being reviewed by the U.S. Court of Appeals for the D.C. Circuit.

Reyes was appointed to the bench by former President Joe Biden.

The executive order Trump signed soon after taking office said the "adoption of a gender identity inconsistent with an individual's sex conflicts with a soldier's commitment to an honorable, truthful, and disciplined lifestyle.”

To implement the order, the Pentagon has barred transgender people from joining the military, stopped paying for some hormonal treatment and sex reassignment surgery and prepared to remove transgender servicemembers from the ranks.

It's possible to get a waiver to remain in the military, but only for a servicemember who, according to Trump administration policy, “has never attempted to transition to any sex other than their sex" and who adheres to "standards associated with" their sex assigned at birth.

Judges on the D.C. Circuit Court of Appeals who held a hearing on the issue on April 22 pushed the administration for evidence to back up their justification of the ban.

Jason Manion, a lawyer for the Justice Department, said the government isn’t required to provide such evidence and that courts are supposed to defer to the military on policy questions. But Manion added that President Donald Tump’s policy is basically similar to one from his first term that was upheld by the Supreme Court and is based on a 40-page study featuring expert testimony.

“It’s just not the case that this was a starting-from-scratch policy,” Manion said.

But Shannon Minter, a lawyer for a half-dozen transgender servicemembers, said the military already screens recruits for medical conditions or psychological problems.

“We don’t talk about people with diabetes or heart conditions being dishonest or undisciplined,” Minter said. “The only thing that you accomplish by having this categorical ban is excluding people who otherwise are qualified, who have already proven they can do the job. That is not rational.”

Contributing: Bart Jansen.