The Supreme Court ruled Jan. 22 to allow the enforcement of President Trump’s ban on transgender military service, a ban previously frozen by lower court injunctions.
The policy immediately stops transgender persons from entering the military except “under certain limited circumstances,” according to media reports. It was first announced by Trump via Twitter in July 2017 and then tweaked in March 2018 to help it pass through lower courts attempting to block it. See related Biblical Recorder report.
In the time since, the military has continued to operate under the old policy. But in December, the Justice Department asked the Supreme Court to uphold the ban, and on Tuesday, justices ruled 5-4 to do that provisionally while the lower courts worked it out.
Solicitor General Noel Francisco reportedly argued that the lower court injunctions restricted the military to an old policy that “posed too great a risk to military effectiveness and lethality.”
Defense Secretary James Mattis said in a February 2018 memo that a Pentagon study showed reasons to reverse the Obama Administration policy allowing transgender service. The reasons included the “high rates of suicide ideation, attempts, and contemplation,” with attempts documented at 41 percent compared to 4.6 percent for the general population.
The study also noted that as the military’s “sex-based standards are based on legitimate biological differences between males and females, it follows that a person’s physical biology should dictate which standards apply.”
The new policy sets forth these three guidelines:
Transgender persons diagnosed with gender dysphoria (“the experience of discomfort with their biological sex, resulting in significant distress or difficulty functioning”) “are disqualified from military service.” The military will make exceptions, the policy states, for individuals who “have been stable for 36 months in their biological sex” prior to entering the service; military members diagnosed with gender dysphoria after entering the service “if they do not require a change of gender and remain deployable”; and service members diagnosed with gender dysphoria since the Obama administration permitted open transgender service in 2016.
“Transgender persons who require or have undergone gender transition are disqualified from military service.”
Transgender persons “without a history or diagnosis of gender dysphoria” may “serve, like all other service members, in their biological sex.”
Justice Department spokesperson Kerri Kupec noted that they will continue to defend the new policy in the lower courts – the Supreme Court’s ruling doesn’t address the legality of the ban, only stays the lower court rulings until the legal process plays out. Two current cases that brought court injunctions – Trump v. Karnoski and Trump v. Stockman – are working their way through the U.S. Court of Appeals for the 9th Circuit. Another injunction was overturned in early January by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit.
(EDITOR’S NOTE – Grace Thornton is a writer based in Birmingham, Ala.)