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Trump’s Military Transgender Ban Teed Up for Supreme Court

Nov. 23, 2018, 2:28 PM

The Justice Department intends to ask the U.S. Supreme Court to review President Donald Trump’s ban on military service by transgender people, the DOJ said in a lower court filing.

The DOJ expects to file the Supreme Court request by Nov. 23. This would allow the justices to consider whether to take the case during their Jan. 11 conference, it said. The court could announce the same day whether it will hear the appeal. The DOJ wants the court to take the case in its current term, the DOJ said in a previous filing. That likely would result in a ruling before the term ends in June 2019.

Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia in October 2017 granted an injunction that blocked the Departments of Defense and Homeland Security from implementing the ban. In August 2018 she rejected the Trump administration’s request to dissolve the injunction after it reworked the ban. Denying enlistment and discharging transgender people likely would be found to be unconstitutional discrimination, Kollar-Kotelly said.

The request would take the unusual route of asking the high court to consider a district court ruling before obtaining a decision on it from an appeals court. The U.S. Court of Appeals for the District of Columbia Circuit is scheduled to hear oral arguments Dec. 10 on Kollar-Kotelly’s order that blocked the ban.

The DOJ’s disclosure came in a Nov. 21 request to Kollar-Kotelly for her to stay her injunction while the DOJ takes the case to the Supreme Court. At a minimum, she should scale it back so that it applies only to the handful of plaintiffs who filed the lawsuit before her, rather than block the ban nationwide, the DOJ said. It may also ask the Supreme Court to delay or limit her order, it said.

Federal judges in Washington state, Maryland, and California also have enjoined the ban’s implementation as a result of challenges filed in other courts.

The Supreme Court is scheduled to consider during its Nov. 30 conference whether to grant review in a separate case that asks whether transgender discrimination violates the 1964 Civil Rights Act’s ban on sex discrimination in employment. The DOJ argues that employers may discriminate based on transgender status without running afoul of the act.

The case is Doe v. Trump, D.D.C., No. 1:17-cv-01597, motion for stay 11/21/18.

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

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com