People For the American Way

Confirmed Judges, Confirmed Fears: Trump Supreme Court Justice Casts Deciding Vote to Allow Trump Military Transgender Ban to Go Forward

Federal Update
Confirmed Judges, Confirmed Fears: Trump Supreme Court Justice Casts Deciding Vote to Allow Trump Military Transgender Ban to Go Forward

“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. 

Trump Supreme Court nominee Brett Kavanaugh cast a deciding vote in a 5-4 decision in January 2019 that dissolved preliminary injunctions in two lower courts and effectively permitted Trump’s military transgender ban to take effect while the litigation goes forward, which could well take a year or more.  [In the meantime, the military will be able to reject transgender individuals from enlisting and can remove those now in the service. Trump nominee Neil Gorsuch was also one of the five justices who voted to reverse and dissolve the injunction that had stopped the policy from taking effect, while moderate Justices Ginsburg, Breyer, Sotomayor, and Kagan would have left the stay in place as the lawsuits against the policy continued.

In unsigned January 22 orders in Trump v. Karnoski and Trump v. Stockman, the 5-4 Supreme Court granted requests from the government with respect to district court orders in California and Washington state that had issued nationwide preliminary injunctions against the Trump-ordered transgender ban. Although the Court did not agree to review the cases immediately, it did order that the injunctions against the ban be lifted while the lower court opinions are reviewed in the court of appeals and possibly the Supreme Court. During that process, which could well extend into 2020, the military can prevent transgender individuals from enlisting and “courageous transgender service members will face discharges.”

One veteran pointed out the particular hardship caused by the off-again on-again policy. After some transgender servicemembers had disclosed their gender identity based on earlier policy, explained Iraq war veteran Jon Soltz, “now we’re going to kick them out for being honest, only to possibly see this ban reversed at a future time.” Soltz concluded that in addition to the hardship and discrimination against transgender individuals, the Court’s 5-4 ruling “has made it harder for every commander in the military”, since each will “have to look at some of the best troops we have and kick them out for being honest about who they are.”

The legal challenge to the ban will go forward, but as one commentator put it, the 5-4 ruling suggests that the majority may be “willing to defer to Trump’s snap judgment” on the issue. The Court “might have gone the other way” if Justice Kennedy were still on the bench, but “his replacement” Brett Kavanaugh has “evinced no interest in defending the dignity of LGBTQ people.” This ruling is likely to be only the first where the replacement of Kennedy by Kavanaugh will seriously harm the rights of Americans.