SCOTUS lets military implement transgender restrictions

by Kim Boateng Posted on January 22nd, 2019

Washington: The Supreme Court on Tuesday allowed the Trump administration to go ahead with its plan to restrict military service by transgender people while court challenges continue.

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 Trump administration had urged the justices to take up cases about the plan directly, but the court declined for now. Those cases will continue to move through lower courts.

Until a few years ago service members could be discharged from the military for being transgender. That changed under President Barack Obama. The military announced in 2016 that transgender individuals 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. While that study was ongoing, the president tweeted in late July 2017 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. The Supreme Court on Tuesday lifted those preliminary injunctions.

In March 2018, the Trump administration announced that after studying the issue it was revising its policy. The new policy generally bars transgender individuals from serving unless they serve “in their biological sex” and do not seek to undergo a gender transition.

The policy has an exception for transgender troops who relied on the Obama-era rules to begin the process of changing their gender, allowing them to continue to serve. The military said last year that over 900 men and women have done so.

Pentagon rules

Under Trump’s policy, transgender persons who have a history or diagnosis of gender dysphoria and who may require “substantial medical treatment, including medications and surgery” are, with some exceptions, disqualified from military service.

The exceptions fall into four categories:

1. The more than 900 active-duty members of the military who a Pentagon report says were diagnosed with gender dysphoria after June 30, 2016. On that date former Defense Secretary Ash Carter lifted a prior ban on transgender persons serving in the military. This group will be allowed to receive required medical treatment to transition and to serve in their preferred gender, as long as they are not deemed nondeployable for more than 12 months.

2. Those who have been “stable for 36 consecutive months in their biological sex” before entering the military.

3. Those who have been diagnosed with gender dysphoria after beginning their military service but “do not require a change of gender.”

4. Those whom the Pentagon calls “transgender persons without a history or diagnosis of gender dysphoria” and who serve “in their biological sex.”

Disqualified from serving in the military, according to a February 2018 memo from Mattis, are “transgender persons who require or have undergone gender transition.” Mattis based his recommendations on a 2017 study he had ordered, in which a 2016 Defense Department survey estimates that about 1 percent of the active-duty force, or 8,980 service members, identify as transgender.

Stark contrast between two administrations

The Human Rights Campaign, which is involved in the Karnoski case in Washington state, condemned the Supreme Court’s decision, saying it “thrusts this administration’s discriminatory agenda onto a military that clearly doesn’t want it, and does so at the expense of transgender people’s careers and service.”

Trump announced his ban abruptly in the summer of 2017, saying in a series of tweets that “the United States Government will not accept or allow…… ….Transgender individuals to serve in any capacity in the U.S. Military.”

The decision seemed to take Defense Department officials by surprise, sparking confusion despite Trump’s assertion that he had consulted “with my Generals and military experts.”

The tweets were followed by an official presidential memo in August of that year, which gave the defense secretary (and for the Coast Guard, the homeland security secretary) the discretion to “determine how to address transgender individuals currently serving in the United States military.”

Trump’s ban was a sharp reversal of a Pentagon policy announced in June 2016, when Carter said, “Effective immediately, transgender Americans may serve openly, and they can no longer be discharged or otherwise separated from the military just for being transgender.”

That Obama-era policy was hailed as ending an era of lenpgal and professional limbo for transgender persons in the U.S. armed services; Carter said the decision was made out of a desire to attract “all talent possible” to serve in the military.

At the time, researchers at the Rand Corp. think tank estimated there were as many as 7,000 active-duty transgender service members, with up to 4,000 more in the reserves.

Because of that policy and the lower court injunctions, the first openly transgender persons were able to join the U.S. military on Jan. 1, 2018. But now their status is once again in jeopardy.

Tuesday’s order states that restrictions on transgender persons in the military will remain in effect until the 9th Circuit rules on the policy. The stay would continue if the case is argued before the Supreme Court.

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