On Tuesday, by a 5–4 vote, the Supreme Court lifted two injunctions blocking President Donald Trump’s ban on open transgender military service. The move bodes poorly for transgender plaintiffs challenging the policy, indicating that the court’s conservative majority will eventually declare the ban to be constitutional. But it does not allow the Pentagon to begin enforcing the new rules. For now, another nationwide injunction remains in place—though it seems quite likely that it will soon be lifted, as well.
The Obama administration began allowing open transgender military service in June 2016 after the Pentagon concluded that it would have no detrimental effects. In July 2017, Trump attempted to ban all trans people from the armed forces via Twitter. A month later, he directed then–Secretary of Defense James Mattis to craft an implementation plan for the ban. Within months, four federal courts blocked the policy, concluding it was arbitrary, unwarranted, and a denial of equal protection.
In March 2018, the Trump administration released its plan to execute the ban. Crafted with the aid of anti-LGBTQ advocates, the new scheme attempted to avoid constitutional flaws by grandfathering in those trans troops already serving openly. Moreover, it did not explicitly target transgender people, but instead excluded those who experience ongoing gender dysphoria, or “who require or have undergone gender transition.”
As U.S. District Judge Colleen Kollar-Kotelly wrote, the revisions of this “Mattis policy” are mere wordplay. The plan still “effectively implements [a transgender] ban by targeting proxies of transgender status … and by requiring all service members to serve ‘in their biological sex.’ ” Since “transgender persons do not identify or live in accord with their biological sex,” the policy remains a trans ban. Yet the U.S. Court of Appeals for the District of Columbia Circuit accepted this sophistry, lifting Kollar-Kotelly’s injunction against the ban.
Now the Supreme Court has lifted two more injunctions, both out of the 9th U.S. Circuit Court of Appeals. (It did not explain its decision but split along ideological lines, with all four liberal justices dissenting.) Yet a fourth nationwide injunction, issued by U.S. District Judge Marvin J. Garbis in Maryland, remains in place—for now. The Trump administration may argue that this ruling only applies to the initial ban, not the Mattis policy. But Garbis’ injunction still seems to forbid the Pentagon from discriminating against transgender troops by blocking all “policies and directives” encompassed in Trump’s initial memo. Since the Mattis policy merely implemented those “policies and directives,” the injunction should apply to them, as well.
Given SCOTUS’s actions on Tuesday, it seems inevitable that the 4th U.S. Circuit Court of Appeals will take a cue from the justices and lift Garbis’ injunction soon, too. For now, however, it remains in effect, blocking the Trump administration from discriminating against trans troops.
Despite that temporary silver lining, there’s no sugarcoating Tuesday’s orders. A majority of the Supreme Court has indicated that it is willing to defer to Trump’s snap decision and allow the Pentagon to once again prohibit open transgender service. The court might have gone the other way if Justice Anthony Kennedy, who famously safeguarded the “dignity” of sexual minorities, remained on the bench. But his replacement, Justice Brett Kavanaugh, has evinced no interest in defending the dignity of LGBTQ people. Once the appeals court, or Supreme Court, lifts the last remaining injunction, the Trump administration’s experiment may begin in earnest, and transgender people who only want to serve their country will once again be shut out on the basis of their identity.