The Trump administration, in a series of emergency briefs on Thursday, pleaded with the Supreme Court to allow a ban on transgender people serving in the military to take effect, rather that waiting a year to take up the case.
The Department of Justice initially filed a set of briefs over Thanksgiving weekend asking the Court to take up the matter, an attempt to circumvent the four cases still playing in federal district and appeals courts.
In the new filings, the administration doubled down on this request, insisting that if the Court doesn’t take up the case this session, it should stay the injunctions the lower courts have imposed, allowing the ban to take effect until it’s able to visit the case in 2019.
Letting thousands of transgender people already serving in the military keep their jobs poses “too great a risk to military effectiveness and lethality,” the filing claims. Allowing an injunction to remain in place “well into 2020” is “a period too long,” and “contrary to the Nation’s interests.”
Such arguments have failed wildly in the lower courts. In September, for example, U.S. District Judge Jesus Bernal said “loss of unit cohesion” had been cited as an argument against allowing Black people, women, and gay people from joining the military. “The military has repeatedly proven its capacity to adapt and grow stronger specifically by the inclusion of these individuals,” he wrote, dismissing claims that including transgender people would generate any different outcome.
A core argument of the administration’s latest filing is that the injunctions should only apply to the specific individuals who filed the various lawsuits, rather than protecting all current and prospective transgender military personnel. It claims the ban is based on the medical condition of gender dysphoria, not transgender identity, and thus does not infringe on any group’s equal protection under the law.
The administration’s description of those impacted by the ban, however, undermines it’s own claims. “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,” it states, arguing that gender dysphoria is not a disqualifying factor, but rather transitioning.
The brief also objects to several motions for discovery filed in the cases, claiming that all documentation related to how the ban was established would fall under executive privilege. Such documents might shed additional light on interference by Vice President Pence and anti-LGBTQ conservatives, Defense Secretary Mattis’ memo — which gave the study committee no choice but to uphold the ban — or how the information the committee collected contradicted its conclusions.
If the Court stays the injunctions but doesn’t consider the case in the meantime, transgender people would likely be banned from the military through 2020. Contrary to the administration’s claims, this would impact countless people beyond the plaintiffs.