Daily Labor Report®

Military Transgender Ban Not Ripe for SCOTUS, Justices Told

Dec. 24, 2018, 9:04 PM

Court rulings that blocked the Trump administration’s restrictions on military service by transgender individuals should be allowed to stand, according to briefs filed in the U.S. Supreme Court Dec. 24.

Three civil rights organizations, the state of Washington, and others are opposing the Trump administration’s request for the high court to take up the cases before lower courts issue final rulings. The ordinary procedure is to obtain a ruling from a district court, followed by a circuit court of appeals, before going to the Supreme Court. The high court’s rules allow litigants to go right to the justices if a case is of “such imperative public importance” that deviating from normal procedure is justified.

Certiorari before judgment is warranted because of the importance of carrying out a policy that would put the armed forces in the strongest position to defend U.S. interests, the Justice Department said Nov. 23 when it petitioned the Supreme Court to take up the issue. Defense Secretary Jim Mattis in February ordered a policy that would presumptively disqualify anybody with a history of gender dysphoria—the medical term for mental distress related to discord between someone’s gender identity and sex assigned at birth.

Lower courts blocked the policy because it appeared to be unconstitutional discrimination.

The DOJ’s petitions noted that the Supreme Court has granted certiorari before judgment in cases involving President Jimmy Carter’s response to the 1979 Iran hostage crisis, President Richard Nixon’s claim of executive privilege in resisting a 1974 Watergate probe subpoena, and President Harry Truman’s seizing steel mills during a 1952 labor dispute.

But the transgender military ban is unlike those cases, in which waiting to go through normal appellate review “would have risked extraordinary disruption” involving foreign affairs, a constitutional crisis, and wartime steel production, according to the civil rights groups. The urgency that the DOJ sees in having the issues resolved can be addressed by moving them through normal lower court procedures for expediting cases, they say.

The Trump administration timed its requests so the Supreme Court could take the issue in its current term, the DOJ said. That could result in a ruling by June 2019, if the court grants review.

The cases are Trump v. Karnoski, U.S., No. 18-676, 12/24/18; Trump v. Doe, U.S., No. 18-677, 12/24/18; Trump v. Stockman, U.S., No. 18-678, 12/24/18.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bloomberglaw.com

To contact the editor responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com

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