It is rare to ask the Supreme Court to hear a case before a federal appeals court has had an opportunity to weigh in. But yesterday the Trump administration made its second such request in less than 20 days, this time urging the justices to take up three cases (here, here and here) challenging the government’s ban on service in the military by most transgender individuals. The solicitor general argues that the issue is so important and time-sensitive that the government should be allowed to bypass the federal courts of appeals and go straight to the Supreme Court so that the justices can hear oral argument and issue a decision before the current Supreme Court term ends next June.
The events giving rise to the government’s appeals began in 2016, when then-Secretary of Defense Ashton Carter announced that transgender individuals would be allowed to serve in the military. Carter ordered the military to adopt new standards for transgender individuals by July 1, 2017.
On June 30, 2017, James Mattis – the Secretary of Defense in the Trump administration – announced that he would defer adopting the new standards to allow the military to “evaluate more carefully” their possible effects. Less than a month later, on July 26, 2017, President Donald Trump announced on Twitter that the U.S. military would not allow transgender individuals to serve “in any capacity.”
A group of current and would-be service members went to court to challenge the ban. In the fall and winter of 2017, federal trial courts in Washington state, California and the District of Columbia all blocked the government from enforcing the policy.
In 2018, Mattis sent a new memorandum that contained recommendations from a panel of senior military officials. The president directed the military to implement the new memorandum, which would effectively ban transgender individuals from serving in the military; the trial courts rejected the government’s requests to allow it to implement the policy outlined in the new memorandum.
The U.S. Court of Appeals for the 9th Circuit heard oral argument in one of the cases on October 10, but it has not yet issued its ruling. Oral argument has been scheduled for December 10 in the U.S. Court of Appeals for the District of Columbia Circuit; no argument date has been set in the 9th Circuit in the third case.
In the briefs filed yesterday, U.S. solicitor general Noel Francisco explained that the dispute requires the justices’ immediate attention because the “prior policy” of allowing transgender individuals to serve “posed too great a risk to military effectiveness and lethality”: The government can’t afford to keep the old policy in place for a year while it waits for the courts of appeals to issue their rulings and then appeals to the Supreme Court.
Bringing all three cases to the Supreme Court at once, Francisco added, will make sure that at least one of them will be a suitable case – known in Supreme Court parlance as a “vehicle” – in which to resolve the dispute. Francisco urged the court to grant all three cases, hear them together and issue a decision by the end of the term.
The service members in the case will have approximately a month to respond to the government’s appeals; the justices are likely to announce in early to mid-January whether they will take up the cases.