Trump administration asks Supreme Court to allow transgender troop discharges

Advocates say that the administration has been aggressively pursuing separation of other trans service members.

attribution · advocates

“Whether the Constitution prohibits the military from exercising that authority by adopting a policy like the one here is a recurring issue, which has arisen before and will likely arise again absent this Court’s review,” he wrote.

attribution · D. John Sauer

The decision was criticized by a group of Senate Democrats, arguing the commander in chief was violating the service members’ civil rights and hindering U.S. national security.

attribution · Senate Democrats

During a speech this week in Oshkosh, Wis., the Defense secretary said the Pentagon is focused on restoring “warrior ethos,” which means “no more DEI [diversity, equity and inclusion].” He continued, “It means colorblind, gender neutral, merit-based, back to basics across the board no matter if you’re carrying a rifle or you’re working on the plant floor.”

attribution · Pete Hegseth

“The sharp contrast to the Mattis Policy, adopted in the first Trump Administration, which allowed servicemembers who were transgender or who had suffered from gender dysphoria to remain in the military, appears to be driven by the bare desire to harm a politically unpopular group: persons who identify as transgender,” U.S. Circuit Judge Robert Wilkins wrote in the appeals court decision.

attribution · Judge Robert Wilkins

U.S. Circuit Judge Justin Walker, a Trump appointee, reminded his colleagues that “we are judges not generals” in a dissenting opinion.

attribution · Judge Justin Walker

“But the Trump administration is asking the Supreme Court to step in now – before trial – so it can begin discharging transgender service members immediately,” GLAD Law said in a statement on Friday.

attribution · GLAD Law

Various lower court rulings have temporarily blocked the removal of specific active-duty service members involved in different lawsuits challenging Trump’s executive order, attorneys said.

attribution · attorneys

Attorneys say the case is now being fought on two fronts — as a petition before the Supreme Court and through ongoing motions, discovery and trial preparation in federal district court.

attribution · attorneys

Hegseth has said people who experience symptoms of gender dysphoria "cannot satisfy the rigorous standards necessary for Military Service," according to a memo he released last year.

attribution · Pete Hegseth

The Trump administration on Friday asked the Supreme Court to weigh in on whether a ban on transgender service members in the military violates the Constitution. U.S. Solicitor General D. John Sauer called a decision by a federal appeals court that barred the government from enforcing the ban “gravely erroneous.” “If allowed to stand,” Sauer told the justices, the ruling by the U.S. Court of Appeals for the District of Columbia Circuit “would represent an ‘unprecedented intervention into military affairs,’ in contravention of this Court’s precedents requiring ‘defer[ence] to the political branches’ military judgments.”

attribution · D. John Sauer

The department explained that “the medical, surgical, and mental health constraints on individuals who have a current diagnosis or history of, or exhibit symptoms consistent with, gender dysphoria are incompatible with the high mental and physical standards necessary for military service.”

attribution · Department of Defense

She agreed with the challengers that the ban is “soaked in animus” and does not serve any legitimate government interest.

“Its language,” she wrote, “is unabashedly demeaning, its policy stigmatizes transgender persons as inherently unfit, and its conclusions bear no relation to fact.”

attribution · Judge Ana Reyes

The policy, they contended, is based on “animosity toward transgender people” because they are transgender and does not serve any real government purpose.

attribution · challengers

Judge Robert Wilkins found “direct evidence” that the ban was motivated by animosity towards transgender people.

attribution · Judge Robert Wilkins

He wrote that the policy’s “foundational premises” are “animus-filled”: It rests on the idea that “persons with a ‘false gender identity’ are unfit for the military, and persons with a history of gender dysphoria are also unfit because they lack ‘honesty, humility, … and integrity.”

attribution · Judge Robert Wilkins

Sauer also contended that the lower court applied an overly stringent standard, known as heightened scrutiny, in concluding that the ban violates the Constitution.

attribution · D. John Sauer

He stressed that a less exacting standard, known as rational basis review, should apply because the policy doesn’t discriminate against transgender people but instead “classifi[es] based on a medical condition (gender dysphoria).” Under rational basis review, he said, the government is only required to show that there are “‘plausible reasons’” for its actions, which there are: “the government has undisputedly legitimate interests in maintaining military readiness, cohesion, and good order and discipline, as well as in managing the military’s costs.”

attribution · D. John Sauer

In the Trump administration’s petition on Friday seeking review of the D.C. Circuit’s decision, Sauer told the justices that the case involved “an issue of exceptional and recurring importance”: “the authority of the federal government to determine who may serve in the Nation’s armed forces.” Here, he wrote, “the military has determined” that the policy “is necessary to maintain its ‘rigorous standards’ and ‘deliver a ready, deployable force.’”

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He stressed that a less exacting standard, known as rational basis review, should apply because the policy doesn’t discriminate against transgender people but instead “classifi[es] based on a medical condition (gender dysphoria).” Under rational basis review, he said, the government is only required to show that there are “‘plausible reasons’” for its actions, which there are: “the government has undisputedly legitimate interests in maintaining military readiness, cohesion, and good order and discipline, as well as in managing the military’s costs.”

attribution · D. John Sauer

"We are confident the Supreme Court will affirm that the Trump administration cannot base policies on hostility toward a group of people," Jennifer Levi, GLAD Law senior director of transgender and queer rights, said in a statement.

attribution · Jennifer Levi

"As the Trump administration’s own attorneys admitted, these are qualified individuals who are meeting all military standards.

attribution · Jennifer Levi

"There is no reason to waste millions of taxpayer dollars to kick out thousands of highly trained, skilled, and decorated troops based on nothing but hostility and this administration’s political whims."

attribution · Jennifer Levi

Transgender members' legal counsel called the Trump administration's efforts on Friday part of more of the same, saying in a statement shared with Military.com that the ban is baseless and rooted in animus rather than military judgment.

attribution · plaintiffs' legal counsel

They also said that discharging such members right now "would cause them extreme and irreparable harm," especially when the confidence level in a legal judgment is in their favor—that is, the Supreme Court ruling the Trump administration's unconstitutional at trial.

attribution · plaintiffs' legal counsel