The Trump administration asked the Supreme Court on Thursday to lift an injunction on its controversial transgender military ban as challenges against it go forward.
Solicitor General John Sauer wrote to the high court that an injunction “cannot be squared with the substantial deference that the department’s professional military judgements are owed.”
In January, President Donald Trump issued an executive order banning trans troops from serving in the military and proclaimed, without evidence, that their “false” expression of their gender identity made them unfit for service.
The order claimed that these soldiers could not meet the “high standards for readiness, lethality, cohesion, honesty, humility, uniformity, and integrity.”
That executive order kicked off a series of lawsuits from transgender service members — many of them decorated and one in an active combat zone — who claimed the administration was openly and unconstitutionally discriminating against them.
The troops also argued that a memo issued by Defense Secretary Pete Hegseth in February to enforce Trump’s order relied on blatantly inaccurate, irrelevant or outdated information to oust them.
U.S. District Judge Ana Reyes in Washington, D.C., agreed to block the ban from going into effect nationwide in March. Acknowledging that an appeal on her order was almost certainly to follow from the White House, she minced few words when calling Trump’s ban “unabashedly demeaning” and “soaked in animus” against trans troops.
She noted that while the Pentagon highlighted clinical depression and suicidal ideation in one study as grounds to exclude trans troops, it failed to note that the same study found that when compared to non-transgender members, transgender troops actually deployed longer.
A week after Reyes’ ruling, U.S. District Judge Benjamin Settle in Washington state issued a second nationwide injunction on the ban. This was tied to litigation filed by another group of trans service members.
Settle’s opinion also found that trans troops had served in the military for years without imposing burdens on military readiness and that the administration lacked evidence to support its ban.
The administration’s “unrelenting reliance on deference to the military” as a reason for the court to let the ban go forward was unconvincing, Settle wrote, especially since the constitutionality of the ban was still being debated.
During oral arguments on April 22 before the U.S. Court of Appeals for the District of Columbia Circuit, this point was underlined during an exchange between Judge Cornelia Pillard and an attorney for the trans troops suing in D.C.
The trans military ban was “extraordinarily unusual,” said the servicemembers’ attorney Shannon Minter. (Minter is also the legal director for the National Center for Lesbian Rights.)
“You just don’t see — ordinarily — the government openly [and] just with complete transparency, expressing animosity towards a group of people and openly relying on that as a justification for a policy,” Minter said.
The Trump administration claims that it is merely focused on how the “medical conditions” of transgender troops impact readiness and has denied expressing animus or prejudice towards trans troops.
But, Minter told Pillard, the military doesn’t dare suggest people who have other medical conditions, like diabetes or heart disease, are implicitly dishonest and unable to serve.
“This isn’t just an ordinary medical policy,” Minter argued.
Troops with medical conditions go through a medical review process where it is determined whether they can still do their job. If the administration’s policy was really about medical issues, Minter told Pillard, then the government would have a plan for individualized assessments in place or standards hashed out for exactly how these assessments on trans troops would be made.
Instead, the government has only repeatedly stated that being transgender is incompatible with “honesty, selflessness, discipline and integrity,” Minter said.
Up to now, because of the injunctions on the ban, the Pentagon has been barred from discharging transgender troops from service until further notice. Policies that forced trans service members to dress or meet other standards set for their assigned birth sex have been put on hold, too.
Voluntary and involuntary separation agreements between trans troops and the military after Trump announced the ban are also on hold until the courts rule.
Before the administration petitioned the Supreme Court, Democrats in the Senate called on Defense Secretary Pete Hegseth to answer questions about some of the transgender troops that were dismissed under the order and what the administration would do to ensure there wasn’t “stigma or backlash resulting from the Trump administration’s targeted attacks against them.”
On Thursday, Sauer told the high court that without a stay, the district court’s universal injunction would go on for “a period far too long for the military to be forced to maintain a policy that it has determined, in its professional judgment, to be contrary to military readiness and the Nation’s interests.”
At minimum, he argued, the court should limit the scope of the injunction to just just the eight trans service members who had sued originally.