Supreme Court Allows Trump’s Transgender Military Ban to Go into Effect

Michael Foust | Contributor | Tuesday, January 22, 2019
Supreme Court Allows Trump’s Transgender Military Ban to Go into Effect

Supreme Court Allows Trump’s Transgender Military Ban to Go into Effect

The U.S. Supreme Court handed the Trump administration and social conservatives a major victory Tuesday when it let stand the military’s ban on most transgender troops while lawsuits against the policy proceed. 

The debate is a holdover from the administration of President Obama, whose Department of Defense ended the ban on transgender troops and even allowed military personnel to undergo taxpayer-funded reconstruction surgery. 

After President Trump took office, the Department of Defense reversed that police and replaced it with one that allowed transgender personnel but prohibited those who had “a history or diagnosis of gender dysphoria.” The effect was to allow some transgender people to serve but only in their biological sex. 

Lower courts had blocked the Trump policy, but on Tuesday the Supreme Court ruled that the policy could go into effect while lower courts consider the cases. The Supreme Court refused the Trump administration’s request to take up the issue immediately.

The high court’s order was barely 100 words and noted that the court’s four liberal justices -- Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan -- would have allowed lower courts to block the ban. At issue were preliminary injunctions from December 2017 that prevented it from going into effect.

“The District Court’s … order granting a preliminary injunction is stayed,” the order read.

The order was among the first victories for social conservatives with new Justice Brett Kavanaugh on the bench. 

The Department of Defense released a statement Tuesday, saying the policy is not a complete ban on transgender personnel. 

“As always, we treat all transgender persons with respect and dignity. DoD's proposed policy is NOT a ban on service by transgender persons,” a spokesperson told CNN. “It is critical that DoD be permitted to implement personnel policies that it determines are necessary to ensure the most lethal and combat effective fighting force in the world. DoD's proposed policy is based on professional military judgment and will ensure that the U.S. Armed Forces remain the most lethal and combat effective fighting force in the world.” 

The Trump administration had asked the Supreme Court in November to hear the case. The Obama-era policy, the Justice Department argued in a petition to the high court, harms the military.   

“[T]he military has concluded [the policy] poses a threat to ‘readiness, good order and discipline, sound leadership, and unit cohesion,’ which ‘are essential to military effectiveness and lethality,’” the November request to the high court reads. 

Concerns over privacy are an issue, too, the Justice Department argued.

“The military maintains separate berthing, bathroom, and shower facilities for each sex,” the department’s petition reads. “The Department [of Defense] was concerned that allowing individuals who retained the anatomy of their biological sex to use the facilities of their preferred gender ‘would invade the expectations of privacy’ of the other servicemembers sharing those facilities.”

Michael Foust is a freelance writer. Visit his blog,

Photo courtesy: Aaron Burden/Unsplash