The subject of the Trump administration’s proposed ban on transgender troops serving in the military had gone dormant for a while as various court challenges played out. Now the White House is attempting to put the issue to rest once and for all by asking the Supreme Court to take up multiple cases and render a final verdict. (NBC News)
The Trump administration urged the U.S. Supreme Court Friday to immediately take up the legal battle over transgender military service, asking the justices to act even before the issue has gone through the lower courts.
The Supreme Court rarely allows such a move to leapfrog over the usual appeals process, but Solicitor General Noel Francisco said the Obama administration’s policy of allowing transgender service poses a threat to military readiness and imposes “an unreasonable burden on the military that is not conducive to military readiness and lethality.”
President Donald Trump took the Pentagon by surprise in July 2017 when he said in a series of tweets that the government “will not accept or allow” transgender individuals to serve in any capacity in the U.S. military.
That doesn’t mean that this is about to take place. While it has happened (rarely) in the past, generally the Supreme Court waits until the lower courts have heard a case and rendered a verdict before deciding whether or not to review the decision. This is particularly true when multiple cases on a related subject are being heard in different courts. They may be more reluctant to overturn a decision which has been upheld in several courts.
But is there a solution already on the table? Very possibly. The military had decided on a modified version of the policy that would allow some transgender applicants to enlist starting in January of this year. At the same time, Defense Secretary James Mattis proposed a compromise which was very much similar to the idea I proposed in August of 2017. At that time I suggested that they could have transgender individuals in the service and do away with a ban if some accommodations could be made up front.
These would include allowing troops to openly discuss their gender preference (there’s no need for a Don’t Ask, Don’t Tell policy if there’s no ban). When off base and off duty they could dress and act as they wish without repercussions. But when on the clock, on base and on duty, they would wear the uniform and use the facilities of their actual gender. Sadly, the response to Mattis’ proposal was a thundering “no” from activists who wish to insist on all or nothing.
Personally, I’ll be shocked if the Supreme Court agrees to take up the case. And I don’t mean just the accelerated hearing the President is requesting. They may refuse to hear the case entirely and leave the decision(s) in the hands of the lower courts. Taking these cases up might force the court to wrestle with the contentious issues of defining gender and sex or making the call as to whether or not transgender applicants are victims of mental illness or are some “new third gender.”
Given their dismal recent record of accepting even sweeping Second Amendment issues, I rather doubt they have the stomach to take on this one. Perhaps they’ll pleasantly surprise me, but I’m not optimistic.