Quick ruling sought on transgender ban

WASHINGTON — President Donald Trump’s administration on Friday asked the Supreme Court to bypass the usual legal process to take on a controversial issue: Trump’s decision to ban transgender people from military service.

Solicitor General Noel Francisco asked the justices to consolidate the challenges to the ban — which so far have been successful in lower courts — and rule on the issue in its current term.

Civil-rights groups and gay-rights organizations are fighting the president’s order that would prohibit transgender men and women from enlisting, possibly subjecting current service members to discharge and denying them certain medical care.

Trump announced in a July 2017 tweet that he was reversing a policy under President Barack Obama’s administration that allowed transgender men and women to serve openly and to receive funding for sex-reassignment surgery.

Trump’s message that “the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military” surprised military leaders and members of Congress. Trump said he was “doing the military a great favor” by “coming out and just saying it.”

Trump issued a memorandum ordering U.S. Defense Secretary James Mattis to submit “a plan for implementing” the ban. The Mattis plan was submitted earlier this year. But it has not satisfied judges in lower courts, who have issued injunctions to keep the current policy in place.

“The decisions imposing those injunctions are wrong, and they warrant this Court’s immediate review,” Francisco wrote Friday.

Challengers have cited Trump’s statements to argue that the directive is the result of discrimination, rather than a study of how allowing transgender personnel affects the military. Lower court judges have largely agreed.

“There is absolutely no support for the claim that the ongoing service of transgender people would have any negative effect on the military at all. In fact, there is considerable evidence that it is the discharge and banning of such individuals that would have such effects,” U.S. District Judge Colleen Kollar-Kotelly wrote last spring in a case filed in the District of Columbia.

The U.S. Court of Appeals for the 9th Circuit has heard arguments on the merits of the case, but has not yet issued an opinion. The U.S. Court of Appeals for the District Circuit is scheduled to hear an appeal of the ruling next month.

Normally, the Supreme Court waits until regional appeals courts have ruled. But Francisco told the Supreme Court the administration cannot afford to wait, and that the justices should accept the cases now so they can be heard in the current term.

“The military has been forced to maintain [its] prior policy for nearly a year,” Francisco wrote. “And absent this court’s prompt intervention, it is unlikely that the military will be able to implement its new policy any time soon.”

Francisco added that “Secretary Mattis and a panel of senior military leaders and other experts determined that the prior policy … posed too great a risk to military effectiveness and lethality.”

Lawyers for those challenging the policy change said there is no urgency.

“There is no valid reason to jump the line now and seek U.S. Supreme Court review before the appellate courts have even ruled on the preliminary issues before them,” Lambda Legal Counsel Peter Renn said.