WASHINGTON >> The Trump administration can go ahead with its plan to restrict military service by transgender men and women while court challenges continue, the Supreme Court said today.
The high court split 5-4 in allowing the plan to take effect, with the court’s five conservatives greenlighting it and its four liberal members saying they would not have. The order from the court was brief and procedural, with no elaboration from the justices.
As a result of the court’s decision, the Pentagon can implement a policy so that people who have changed their gender will no longer be allowed to enlist in the military. The policy also says transgender people who are in the military must serve as a member of their biological gender unless they began a gender transition under less restrictive Obama administration rules.
The Trump administration has sought for more than a year to change the Obama-era rules and had urged the justices to take up cases about its transgender troop policy immediately, but the court declined for now.
Those cases will continue to move through lower courts and could eventually reach the Supreme Court again. The fact that five justices were willing to allow the policy to take effect for now, however, makes it more likely the Trump administration’s policy will ultimately be upheld.
Justice Department spokeswoman Kerri Kupec said the department was pleased with the court’s decision.
“The Department of Defense has the authority to create and implement personnel policies it has determined are necessary to best defend our nation,” she said, adding that lower court rulings had forced the military to “maintain a prior policy that poses a risk to military effectiveness and lethality.”
Groups that sued over the Trump administration’s policy said they ultimately hoped to win their lawsuits against the policy. Jennifer Levi, an attorney for GLBTQ Legal Advocates & Defenders, said in a statement that 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.”
Until a few years ago service members could be discharged from the military for being transgender. That changed under the Obama administration. The military announced in 2016 that transgender people already serving in the military would be allowed to serve openly. And the military set July 1, 2017, as the date when transgender individuals would be allowed to enlist.
But after President Donald Trump took office, the administration delayed the enlistment date, saying the issue needed further study. And in late July 2017 the president tweeted that the government would not allow “Transgender individuals to serve in any capacity in the U.S. Military.” He later directed the military to return to its policy before the Obama administration changes.
Groups representing transgender individuals sued, and the Trump administration lost early rounds in those cases, with courts issuing nationwide injunctions barring the administration from altering course. It was those injunctions that the Supreme Court put on hold today, allowing the Trump administration’s policy to take effect.
The Trump administration’s revised policy on transgender troops dates to March 2018. The policy generally bars transgender people from serving unless they do so “in their biological sex” and do not seek to undergo a gender transition. But it has an exception for transgender troops who relied on the Obama-era rules to begin the process of changing their gender.
Those individuals, who have been diagnosed with “gender dysphoria,” a discomfort with their birth gender, can continue to serve after transitioning. The military has said that over 900 men and women had received that diagnosis. A 2016 survey estimated that about 1 percent of active duty service members, about 9,000 men and women, identify as transgender.