Supreme Court Allows Military Transgender Ban to Proceed for Now

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In this Jan. 7, 2019 photo, The Supreme Court is seen in Washington. (AP Photo/J. Scott Applewhite)
In this Jan. 7, 2019 photo, The Supreme Court is seen in Washington. (AP Photo/J. Scott Applewhite)

The U.S. Supreme Court has allowed the Trump administration to pursue a plan to limit transgender people from serving in the military services under an order announced Tuesday.

In a 5-4 ruling, the justices declined to take up three cases over the proposed ban, which would prevent transgender individuals from serving in the U.S. armed forces except under limited circumstances, such as those already serving openly and those willing to serve as their biological genders.

The justices' move allows several lawsuits to continue in the lower courts, where a number of judges have instituted injunctions preventing implementation of the ban.

But on Jan. 4, the U.S. Court of Appeals for the District of Columbia vacated one of the injunctions, and the U.S. Court of Appeals for the 9th Circuit in San Francisco is expected to consider and rule on several injunctions.

In 2016, Defense Secretary Ash Carter abolished a policy that barred transgender individuals from serving in the U.S. military.

Last March, President Donald Trump reversed that decision, announcing that troops with a history or diagnosis of gender dysphoria -- the mental health condition that has been ascribed to transgender individuals -- "presents a considerable risk to military effectiveness and lethality."

Almost as soon as the new policy was announced, potential recruits, including Ryan Karnoski, a transgender person from Edmonds, Washington, filed lawsuits challenging the constitutionality of the ban. The state of Washington is a plaintiff in Karnoski's lawsuit.

In the most recent Supreme Court filings, U.S. Solicitor General Noel Francisco argued that the Supreme Court needs to step in to stop federal district court judges from issuing injunctions on administration policies with which they disagree.

LGBTQ advocates on Tuesday described the Supreme Court's inaction as unfortunate but noted that the order also doesn't require the military to reinstate the ban.

"President Trump revoked his directive for a ban and has turned the issue over to the military's discretion to 'implement any appropriate policies concerning military service by transgender individuals,' " Palm Center Director Aaron Belkin said in a release. "The Defense Department should not reinstate the transgender ban because it would undermine readiness, cause significant disruptions and uncertainty ... and deprive the military of much-needed talent."

Pentagon spokeswoman Lt. Col. Carla Gleason on Tuesday said the proposed policy is "not a ban on service by transgender persons," adding that the Defense Department treats "all transgender persons with respect and dignity."

But she added that it is "critical that DoD be permitted to implement personnel policies that it determines are necessary to ensure the most lethal and combat-effective fighting force in the world."

"DoD's proposed policy is based on professional military judgment and will ensure that the U.S. armed forces remain the most lethal and combat effective fighting force in the world," she said.

In February 2018, then-Defense Secretary Jim Mattis delineated the policy that allowed transgender personnel to serve, after receiving input from a "panel of experts," including transgender service members, commanders of transgender service members, combat veterans, and military and civilian health professionals.

"Based on the work of the panel and the department's best military judgment, the DoD concludes that there are substantial risks associated with allowing the accession and retention of individuals with a history or diagnosis of gender dysphoria and require, or have already undertaken, a course of treatment to change their gender. Furthermore, the department also finds that exempting such persons from well-established mental health, physical health and sex-based standards ... could undermine readiness, disrupt unit cohesion and impose an unreasonable burden on the military," Mattis wrote.

Estimates vary on the number of transgender people serving in the U.S. military. A 2016 Rand Corp. report estimated that between 1,320 and 6,630 transgender individuals were serving on active duty. Advocates at the Palm Center say the number may be as high as 14,700 in both the active and reserve components.

According to the proposed policy, 994 troops diagnosed with gender dysphoria were serving on active duty between 2015 and 2017. They accounted for 30,000 mental health visits during that time frame.

On Tuesday, the American Military Partner Association, a party in one of the cases reviewed by the U.S. Supreme Court, said the transgender military members serving the nation "deserve better than this decision."

"Our only hope is that justice will ultimately prevail over blatant bigotry and discrimination when the court hears the full arguments of our case," the association said in a statement.

In the vote issued Tuesday, Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan dissented.

-- Patricia Kime can be reached at patricia.kime@military.com. Follow her on Twitter @patriciakime.

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