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The Trump administration on Thursday asked the Supreme Court to let it begin enforcing a ban on transgender service members, escalating a fight over a controversial policy that has faced numerous legal setbacks in recent weeks.
The emergency appeal thrusts the high court into another politically charged dispute over a key aspect of Trump’s agenda. It comes as the justices have increasingly been pressed by the administration to unlock various parts of his agenda that have been held up by lower courts reviewing the legality of the initiatives.
The military ban was announced by Trump earlier this year and would have taken effect late last month, but several lower courts issued rulings against it before it could be implemented.
In the case at hand, a federal judge in Washington state decided that the policy likely violated the constitutional rights of a number of active-duty transgender service members and an individual who wants to join the military.
Solicitor General John Sauer told the justices that the Pentagon should be allowed to enforce the ban while the legal challenge is resolved, arguing US District Judge Benjamin Settle had overstepped by wading into military policy.
“The district court’s injunction cannot be squared with the substantial deference that the Department’s professional military judgments are owed,” Sauer wrote.
Without Supreme Court action, he added, the military will “be forced to maintain a policy that it has determined, in its professional judgment, to be contrary to military readiness and the Nation’s interests.”
Sauer suggested the justices do one of two things: pause Settle’s ruling in full or narrow it so that it only applies to the individuals who filed the lawsuit.
The Supreme Court has asked the individuals challenging the policy to respond to the emergency appeal by next Thursday.
This is not the first time the Supreme Court has had to grapple with the issue. During Trump’s first term, a similar ban issued in 2017 drew at least four lawsuits arguing the prohibition represented an unconstitutional form of sex discrimination. Federal district courts across the nation temporarily blocked the ban from taking effect.
The high court, however, let the ban take effect in 2019. However, it did not rule on whether it was constitutional before President Joe Biden reversed the policy in 2021.
Sauer pointed to that decision in his emergency appeal on Thursday, arguing that the court had allowed the administration back then to implement a “materially indistinguishable policy.”
In his lengthy ruling blocking the new policy, Settle said the administration “fails to contend with the reality that transgender service members have served openly for at least four years under (policies from previous administrations) without any discernable harm to military readiness, cohesion, order, or discipline.”
“It provides no evidence to counter plaintiffs’ showing that open transgender service has in fact enhanced each of these interests,” the judge wrote, referring to the policy Biden had in place during his tenure.
Earlier this year, the Pentagon released its guidance implementing Trump’s executive order, which said transgender service members are incompatible with military service. The Trump administration has argued that continuing to permit trans individuals to serve in the US would negatively affect, among other things, the military’s lethality, readiness and cohesion.
The guidance said the military would kick out transgender service members who don’t meet specific requirements under its new policy.
“Service members who have a current diagnosis or history of, or exhibit symptoms consistent with, gender dysphoria will be processed for separation from military service,” said a memo outlining the new policy.
“The Department only recognizes two sexes: male and female,” the policy memo says. “An individual’s sex is immutable, unchanging during a person’s life. All service members will only serve in accordance with their sex.”
But the preliminary injunction issued by Settle, as well as one from a judge in Washington, DC, concluded that the government had not put forth any convincing arguments justifying the policy, which the judges said unlawfully discriminates against transgender Americans.
“The Hegseth Policy plainly discriminates on basis of transgender status,” Settle wrote in his ruling. “The Policy penalizes transgender service members for complying with standard grooming, pronoun usage, and performance metrics that the military requires in cisgender service members. Since it is the birth sex of the service member that triggers the adverse employment action rather than a failure to meet set standards, the discrimination is based on sex.”
A federal appeals court in San Francisco rejected efforts by the Trump administration to lift Settle’s block on the policy, and the US DC Circuit Court of Appeals is currently considering whether to let the preliminary injunction issued by US District Judge Ana Reyes take effect for now.
This story has been updated with additional details.
