President Trump wants the Supreme Court to consider the transgender military ban before the lower courts are even finished weighing the issue.
In an unusual move over the holiday weekend, the Trump administration filed a petition for a writ of ‘certiorari before judgment’ [PDF]—essentially an urgent request for the Supreme Court to step in before circuit-level courts have issued their rulings—asking SCOTUS to lift the injunctions that lower courts have placed on the troop ban since the president announced it on Twitter last July.
It’s a move that LGBT advocates say can only have one real motive: The White House knows that, with those injunctions in place, each passing day continues to prove that openly transgender military service is not the national crisis that they claim it is.
“I do think that they understand that every day that goes by that transgender service members are doing a good job, showing the military and the world that they’re fit, qualified, and capable—it severely undermines their case,” Shannon Minter, legal director for the National Center for Lesbian Rights and one of the attorneys involved in the litigation over the troop ban, told The Daily Beast.
Aaron Belkin, director of the Palm Center, which studies LGBT issues in the military, agreed with that assessment.
“It’s a little harder to put the toothpaste back in the tube with each day that goes by,” he told The Daily Beast. “We’ve now had two and a half years of successful, inclusive policy for transgender troops.”
There is generally a high bar for the Supreme Court to grant a petition for cert before judgment.
Those who file such petitions must demonstrate that the case is “of such imperative public importance as to justify deviation from normal appellate practice,” according to Supreme Court rules. In most instances, SCOTUS would much rather decide whether or not to grant review after one or more circuit courts have ruled.
According to its petition, the White House believes that the “imperative public importance” standard is met because the case pertains to “the authority of the U.S. military to determine who may serve in the Nation’s armed forces.”
The petition further claims that Secretary of Defense James Mattis consulted “senior military officials and other experts” in formulating a policy that would disqualify transgender troops.
“Absent an immediate grant of certiorari,” the petition notes, “there is thus little chance of a prompt resolution of the validity of Secretary Mattis’ proposed policy.”
That narrative is difficult to square with both reports that President Trump hastily tweeted out the troop ban without Pentagon leadership being notified ahead of time—and with recent statements by the military’s Chiefs of Staff.
In April 2018 congressional testimony, as Military Times reported, all of the service chiefs said that openly transgender military service did not hurt unit cohesion or cause other issues.
Army Chief of Staff General Mark Miller, for example, said that he had “received precisely zero reports of issues of cohesion, discipline, morale, and all those sorts of things.” His remarks were typical of the tone the chiefs took in response to queries about transgender military service. (The White House did not immediately respond to request for comment on this story.)
That makes LGBT advocates skeptical that the Supreme Court will agree with the White House that there’s some urgent need to weigh in on the injunctions. They believe the petition filed over the holiday weekend is a fairly transparent political ploy.
“The administration has a long history of lying about transgender troops in the military,” Belkin told The Daily Beast, reiterating that transgender people are already serving without incident. “In this case, the administration is framing a policy success not just as a failure, but as a failure that is so dire and so urgent that the legal process has to be short-circuited.”
If the Supreme Court denies the petition, the lawsuits against the administration over the troop ban will continue in the lower courts, with injunctions remaining in place for the time being. And yet, petitions for cert before judgment have been granted before.
“They do it rarely,” said Minter, “but they occasionally do it.”
If that happens, the Supreme Court would theoretically only be considering whether or not to lift the injunctions that have been placed on the rollout of the transgender troop ban thus far. The lower-level lawsuits about the legality of the troop ban would proceed while that happens. As Minter told The Daily Beast, the Supreme Court “would only be considering whether the courts properly refused to lift the preliminary injunction.”
But it’s also “possible,” he added, “that if the court took the case they could find a way to reach the merits if they wanted to.” In other words, there’s an outside chance that the Supreme Court could decide to rule on the constitutionality of the transgender troop ban itself—which would likely place the fate of transgender service members in the hands of Chief Justice John Roberts and newly-appointed Justice Brett Kavanaugh.
“This is obviously an extremely important juncture in the case—and if the court takes it, that changes everything,” said Minter. “It changes the entire posture of this litigation. It will suddenly become a Supreme Court case.”
But Minter also worries that, lost in all of the speculation and courtroom drama, is the fact that thousands of transgender people are currently in the military right now, coping with deep uncertainty over whether the policy that allows them to serve openly will be reversed—the first time the military would walk back an inclusive policy.
“I hope that as people are analyzing this and thinking about the legal landscape, that none of us forget the human side of this,” he said. “It’s so incredibly stressful and nerve-wracking for the transgender people who are serving right now.”
Even if the Supreme Court rules more narrowly on the question of the injunctions, that decision could till be potentially catastrophic for transgender military service.
“If the Supreme Court lifts the preliminary injunctions, that is literally the reinstatement of the ban,” Belkin told The Daily Beast. “That is the reinstatement of ‘Don’t Ask, Don’t Tell’ for trans troops. Just a narrow ruling on the injunction will reinstate the ban for years while the cases make their way through court.”
The lower-level lawsuits would proceed, but the transgender troop ban would be allowed to move forward in the interim. Whether or not that could happen without proof that transgender military service is harmful remains to be seen.
“This conversation has never been about evidence,” said Belkin. “It’s always been about dislike of trans people, about transphobia, intolerance, and animus.”