(Reuters) – The US Supreme Court on Tuesday decided in favour of President Donald Trump’s policy of barring many transgender people from the military, by lifting lower court rulings that had blocked the plan on constitutional grounds.
The decision, with the court’s five conservative justices prevailing over its four liberals, granted the Trump administration’s request to lift injunctions issued by federal judges against the policy, while a challenge to its legality continues in lower courts. The liberal justices favored keeping the injunctions in place.
The justices, however, refused the administration’s request for them to decide the merits of the legal fight, even before a California-based federal appeals court already considering the matter is given a chance to rule.
Attorneys representing transgender people already in the military, or hoping to join, condemned the court’s action.
“For more than 30 months, transgender troops have been serving our country openly with valor and distinction, but now the rug has been ripped out from under them, once again”, said Peter Renn, an attorney for Lambda Legal, which represents some of the plaintiffs.
House of Representatives Speaker, Nancy Pelosi, a Democrat, said the Republican president’s “ban on trans Americans serving in our nation’s military was purpose-built to humiliate brave men and women seeking to serve their country”, adding that it was “deeply concerning” that the high court had allowed it to proceed.
Trump in 2017 announced a plan to ban transgender people from the military, moving to reverse a policy announced a year earlier under Democratic former President, Barack Obama, allowing them for the first time to serve openly and receive medical care to transition genders.
Trump, whose administration also has taken other steps to limit the rights of transgender Americans, cited the “tremendous medical costs and disruption” of having transgender troops.
Civil liberties and gay and transgender rights groups sued on behalf of current transgender service members, including some deployed overseas with decades of experience in the armed forces, and transgender people seeking to join the military.
In March 2018, Trump backed a revised policy offered by then-Defense Secretary, Jim Mattis, that would ban the service of transgender people, who seek or have undergone gender transition steps.
It also would ban under certain circumstances transgender people who experience gender dysphoria, a condition the American Psychiatric Association defines as clinically significant distress due to “a conflict between a person’s physical or assigned gender” and the individual’s gender identity.
Federal courts had blocked the administration’s original policy, finding it likely violated the US Constitution’s guarantee of equal protection under the law. Various injunctions allowed transgender troops to join the military as of January 1, 2018.
The administration then failed to convince federal judges in Washington state, California, and the District of Columbia, that the revised policy was any more legally sound than the original ban. Those judges found that the revised policy was merely an attempt to implement Trump’s original ban.
The Justice Department applauded the high court’s action.
Due to the injunctions, “our military had been forced to maintain a prior policy that poses a risk to military effectiveness and lethality for over a year”, spokeswoman Kerri Kupec said.
“We will continue to defend in the courts the authority and ability of the Pentagon to ensure the safety and security of the American people”.
Trump’s revised policy got a boost on January 4, when a federal appeals court in Washington, DC, sided with him, and overturned an injunction issued by a judge in the US capital. That ruling had a limited effect, because other nationwide injunctions remained in place.
The administration said the justices’ action would apply to another injunction by a judge in Maryland.
A 2016 Pentagon-commissioned study, completed before Obama acted to allow transgender troops, found that any impact on cost or military readiness would be marginal.
It estimated that there were around 2,450 transgender personnel actively serving in the military at the time. Not all transgender people experience gender dysphoria, according to the American Psychiatric Association, which opposes a transgender military ban.
Mattis announced his resignation as Pentagon chief in December over other differences with Trump.
Trump’s administration also has rescinded federal guidance protecting transgender students in public schools, concerning bathroom access, while the Justice Department has argued that a federal law against workplace discrimination on the basis of sex does not cover transgender employees.
The Supreme Court in 2017 sidestepped a major ruling in another transgender rights case, when it cancelled scheduled arguments in a bathroom access dispute involving a Virginia high school student, after the Trump administration reversed the federal guidance.