Supreme Court allows Trump's anti-trans military ban to go into effect

The order, with no reasoning, effectively overturns two district court rulings blocking the ban. The liberal justices objected.

On Tuesday afternoon, with no reasoning, the U.S. Supreme Court allowed the Trump administration to begin implementing President Donald Trump’s anti-transgender military ban while it appeals losses below — effectively overruling two extensive district court decisions finding the ban is likely unconstitutional.

While only a ruling in a case out of Washington state, the order in the other case — out of Washington, D.C. — is on hold currently by the U.S. Court of Appeals for the D.C. Circuit with an administrative stay, as covered at Law Dork previously. As such, there is no impediment to the ban’s implementation presently.

As a result of the Supreme Court’s order in U.S. v. Shilling, the district court’s injunction blocking the ban has been stayed throughout the remainder of the litigation — which could easily take more than a year. During that time, the Trump administration almost certainly will quickly begin kicking transgender people out of the military for no reason other than their being transgender — in addition to preventing transgender people from joining the military.

Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson noted that they would deny the government’s request.

While alarming on its face for the military cases at issue and service members involved, the order also comes as the justices are considering the constitutionality of Tennessee’s ban on gender-affirming medical care for transgender minors and as other cases challenging anti-trans actions — including from the Trump administration — are pending in lower courts.

The lack of any writing from any justices does make reading too much into Tuesday’s ruling perilous. Given that the Shilling case involves the military — an area in which the courts give the executive substantial deference — a belief from a majority on Tuesday that the government will likely succeed in Shilling does not necessarily mean that the Tennessee law in U.S. v. Skrmetti would receive the same deference.

Specifically, the question at issue in Skrmetti — whether such laws are subject to heightened scrutiny as sex classifications or as classifications based on transgender status — could be resolved as the challengers wish with heightened scrutiny applied and yet a majority of the Supreme Court might still believe that such a classification is allowed in the military context.

Further, the lack of writing in Shilling could point in two conflicting directions: It could signal that the decision in Skrmetti is going to substantially clarify many of these challenges such that no one felt it proper to write on Tuesday — or it could signal that the court remains undecided in Skrmetti and the justices are still negotiating the outcome.

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The background on the military order and what’s next

On January 27, President Donald Trump issued an excessively anti-transgender executive order setting forth a path to end military service for transgender people. Lawsuits quickly followed.

In Shilling, U.S. District Judge Benjamin Settle — a George W. Bush appointee — had issued the second injunction blocking the Trump administration from enforcing the ban nationwide on March 27 because he found it was likely unconstitutional. A little less than a month later, on April 18, the U.S. Court of Appeals for the Ninth Circuit denied the government’s request for a stay of that order pending appeal. The next week, the Justice Department asked the Supreme Court to step in.

On Tuesday, the conservative majority did so — allowing enforcement of a ban that judges appointed by presidents of both parties have found to be likely unconstitutional.

In his ruling blocking enforcement of the ban, Settle called the government’s defense “unpersuasive,” adding that the case was “not an especially close question.” In her March ruling in the D.C. case, Talbott v. Trump, U.S. District Judge Ana Reyes, a Biden appointee, had found that the ban was “soaked in animus.”

While there will now be some legal complications given the procedural posture in Talbott — the D.C. Circuit’s administrative stay of Reyes’s ruling remains in effect and the motions panel heard arguments over the stay pending appeal request last month but has not yet issued a ruling — the Supreme Court’s message is clear that the ban will go into effect.

First, procedurally, there is no bar to the Defense Department’s implementation of the anti-trans ban. Second, the D.C. Circuit is almost certain to either go along with the Supreme Court’s order and issue a similar order in Talbott or ask for follow-up briefing from the parties on the effect of Tuesday’s order.

[Update, 5:30 p.m.: The Justice Department alerted the D.C. Circuit to the Supreme Court’s order quickly, as expected, with a filing later Tuesday afternoon.]

Eventually then, the Ninth Circuit and D.C. Circuit will consider the merits of the government’s appeal and the losing party there can appeal to the Supreme Court — but the ban will remain in effect during that entire time.

As such, trans people will be kicked out of the military and lose their career during that time only because they are trans and the Trump administration has decided — as has happened many times with other groups throughout our history — that such status is “incompatible” with military service.