The U.S. Supreme Court on Tuesday granted the Trump administration’s request to temporarily vacate two national injunctions that have prevented a ban on transgender people in the military from going into effect.
But the order denied the administration’s request that the Supreme Court immediately take up the matter of whether President Trump’s proposed ban is constitutional, and some LGBT legal activists say an injunction in another case keeps the ban intact.
“As a practical matter, this is bad for transgender people currently in service,” said Jennifer Levi, director of the Transgender Rights Project for the GLBTQ Legal Advocates & Defenders (aka GLAD). She said it “strengthens the government's position that it may be permitted to exclude people from serving,” but she said the order is “very limited” and declined the Trump administration’s request to have the high court hear arguments on the constitutionality of the ban itself before the litigation winds through the normal court process.
“This is a very narrow, limited ruling from the Supreme Court that allows the cases to proceed on the merits in the lower courts,” Levi said. “We will keep fighting this ban in the courts below and believe that it ultimately will not be allowed to stand.”
Tuesday’s order affected three of the four lawsuits challenging President Trump’s proposed ban on transgender people in the military: Karnoski v. Trump, Stockman v. Trump,andJane Doe v. Trump. Only two of those cases (Karnoski andStockman) had injunctions in place against the ban. Both are pending argument before the Ninth Circuit U.S. Court of Appeals.
The Supreme Court order did not affect an injunction granted in another fourth lawsuit, Stone v. Trump.
Shannon Minter, legal director for the National Center for Lesbian Rights, said, “The Stoneinjunction is still in place so the government cannot yet enforce the ban until it takes some further action to get out from under the Stoneinjunction.”
There is some confusion on that last point. Numerous media reports say Tuesday’s order sets the Trump administration free to implement its ban.
Peter Renn, attorney for Lambda Legal, which is representing service members in Karnoski v. Trump, said the order allows the Trump administration “to begin kicking openly transgender troops out of the armed services and to deny transgender people the opportunity to enlist.”
But Renn acknowledged the order is “perplexing to say the least.”
“On the one hand, [it is] denying the Trump administration’s premature request for review of lower court rulings before appellate courts have ruled and rebuffing the administration’s attempt to skirt established rules,” said Renn, “and yet, on the other, allowing the administration to begin to discriminate, at least for now, as the litigation plays out.”
Renn said that, while Tuesday’s order did not affect the Stoneinjunction, the U.S. Department of Justice will probably move very quickly to urge the district court in that case that it should stay its injunction now, too, given the Supreme Court’s order today.
GLAD’s Levi said that “no one has a crystal ball to know what the district court will do in Stone.” But she acknowledged that “it's fair to predict that, whenever the question gets back up to the Supreme Court on whether the injunction will stay in place while the challenge proceeds below on the merits, that the Supreme Court is likely to grant a stay in Stoneas it did in Karnoski andStockman.”
NCLR and GLAD are representing numerous transgender service members in two of the cases involved Tuesday: Stockman v. Trumpin Los Angeles, which is awaiting action by the Ninth Circuit appeals court, and Jane Doe v. Trumpin Washington, D.C., which is pending before the federal appeals court for D.C. The third lawsuit involved in the Jan. 22 order is Karnoski v. Trump, another Ninth Circuit case, led by Lambda Legal.
The Stone v. Trumpcase is being led by the ACLU on behalf of service members in Maryland and will eventually come before the Fourth Circuit U.S. Court of Appeals.
The January 22 order from the Supreme Court indicated that the vote on the Karnoskiand Stockmanpetitions had been 5 to 4, with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan saying they would have denied the petitions.
LGBT legal groups had argued against the Trump administration petitions to vacate the injunctions, saying that it was too soon for the Supreme Court to become involved in the litigation. They noted that no federal appeals court had yet to rule on the constitutionality of the proposed ban or on the injunction against the ban. Three federal appeals courts made preliminary rulings that the injunctions could stand until a full hearing on their merits and the ban could be played out. The fourth case, Stone,is still before a district court.