The Department of Justice (DOJ) on Friday asked the Supreme Court to bypass the Ninth Circuit Court of Appeals' and decide on whether or not the Trump administration's ban on transgenders in the military is constitutional, NPR reported.
From the court petition:
In 2018, Secretary of Defense James Mattis announced a new policy concerning military service by transgender individuals. Under the Mattis policy, transgender individuals with a history of a medical condition called gender dysphoria would be disqualified from military service unless they meet certain conditions. The question presented is: Whether the district court erred in preliminary enjoining the military from implementing the Mattis policy nationwide.
Here are the conditions set forth by the new policy, as described in the petition (emphasis mine):
In February 2018, Secretary Mattis sent the President a memorandum proposing a new policy consistent with the panel’s conclusions, along with a lengthy report explaining the policy. App., infra, 113a-209a. Like the Carter policy, the Mattis policy holds that “transgender persons should not be disqualified from service solely on account of their transgender status.” Id. at 149a. And like the Carter policy, the Mattis policy draws distinctions on the basis of a medical condition (gender dysphoria) and related treatment (gender transition). Id. at 207a-208a. Under the Mattis policy—as under the Carter policy—transgender individuals without a history of gender dysphoria would be required to serve in their biological sex, whereas individuals with a history of gender dysphoria would be presumptively disqualified from service. Ibid. The two policies differ in their exceptions to that disqualification.
Under the Mattis accession standards, individuals with a history of gender dysphoria would be permitted to join the military if they have not undergone gender transition, are willing and able to serve in their biological sex, and can show 36 months of stability (i.e., the absence of gender dysphoria) before joining. App., infra, 123a. Under the Mattis retention standards, servicemembers who are diagnosed with gender dysphoria after entering service would be permitted to continue serving if they do not seek to undergo gender transition, are willing and able to serve in their biological sex, and are able to meet applicable deployability requirements. Id. at 123a-124a.
Under both the accession and the retention standards of the Mattis policy, individuals with gender dysphoria who have undergone gender transition or seek to do so would be ineligible to serve, unless they obtain a waiver. App., infra, 123a. The Mattis policy, however, contains a categorical reliance exemption for “transgender Service members who were diagnosed with gender dysphoria and either entered or remained in service following the announcement of the Carter policy.” Id. at 200a. Under that exemption, those servicemembers “who were diagnosed with gender dysphoria by a military medical provider after the effective date of the Carter policy, but before the effective date of any new policy, may continue to receive all medically necessary treatment * * * and to serve in their preferred gender, even after the new policy commences.” Ibid. The Department has since confirmed that the exemption would also extend to any servicemember “who was diagnosed with gender dysphoria prior to the effective date of the Carter policy and has continued to serve and receive treatment pursuant to the Carter policy after it took effect.” C.A. E.R. 489.
Recommended
According to The Guardian, the administration is pushing for a decision because it “involves an issue of imperative public importance: the authority of the US military to determine who may serve in the Nation’s armed forces."
This isn't the first time the Trump administration asked the Supreme Court to fast-track their decision on Trump's decision end the Deferred Action for Childhood Arrivals (DACA) program, which began under President Obama.
The administration also asked the Supreme Court to make a decision on the legality behind the 2020 census having a question about someone's citizenship status. And, not surprisingly, the lawsuits take place in the Ninth Circuit, which has long opposed President Trump's policy agenda.
The Supreme Court tries to wait until multiple courts at both the district and appellate level have heard the case before they make a determination. It's rare for the highest court to take on a case as often as the Trump administration has pushed them to take.
Join the conversation as a VIP Member