U.S. Makes Unusual Request In Transgender Military Ban Case (2)

Dec. 13, 2018, 9:52 PM; Updated: Dec. 14, 2018, 12:48 AM

The Trump administration again asked the U.S. Supreme Court to leapfrog the lower courts over the legality of its ban on transgender military service.

Just last month, U.S. Solicitor General Noel Francisco asked the justices to skip over the U.S. Court of Appeals for the Ninth Circuit and decide for itself whether the ban is legal. Responses to that request aren’t due until Dec. 24.

In an unusual move today, the administration decided not to wait to hear from the other side before making another request. In three separate filings with the Supreme Court, the administration asked the justices to stay a lower court ruling instead of deciding the legality of the ban itself.

Transgender Litigation

Litigation over the military ban continues amid mounting tension in federal courts related to transgender anti-discrimination rights in public schools and public- and private-sector workplaces.

Trump announced the ban on transgender Americans serving in the military in a series of tweets in 2017 then outlined the plan this past March.

In October, a district court judge temporarily blocked the administration from enforcing the prohibition while the legal battle plays out.

‘Aggressive Approach’

Garrett Epps, a constitutional law professor at the University of Baltimore School of Law who covers the Supreme Court for The Atlantic, told Bloomberg Law before the latest requests had been filed that the administration had raised some eyebrows with its “aggressive approach” in the high court.

The administration “has not had much success in the lower courts” on hot-button issues, Josh Blackman, a professor at the South Texas College of Law Houston, told Bloomberg Law.

On the other hand, the Supreme Court has given partial relief when requested by the solicitor general, Blackman said, pointing to litigation over the administration’s travel ban and census litigation.

It’s hard to say if the frequent filings from the solicitor general are annoying the justices, or if the court sees the lower courts as out of line, Blackman said.

“We will see the answer later this term,” he said.

The cases are Trump v. Karnoski, U.S., No. 18-676, stay requested 12/13/18, Trump v. Doe 2, U.S., No. 18-677, stay requested 12/13/18, and Trump v. Stockman, U.S., No. 18-678, stay requested 12/13/18.

(adds background on ban)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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