The US Supreme Court is meeting today in camera to consider a request by the Trump administration to immediately reinstate the ban on transgender people from serving in the military.
The court has many options to proceed. According to the Palm Center, a San Francisco gay rights organization, the judges could:
take no decision and postpone any action at a later date.
refuse the government's request to hear his case, and refuse to lift the current injunctions that prevented the ban from coming into force.
agree to hear the government's case, but keep the injunctions that ended the ban
refuse to hear the cause of the government, but leave the injunctions – which would allow the ban to come into force, but would not require the army to reinstate it, the President Trump granting the Ministry of Defense the discretion to implement the policy.
The Palm Center estimates that 14,700 transgender soldiers serve in the active component and reserves.
However, the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates & Defenders (GLAD) have taken legal action (Doe v. Trump) challenging the ban in August 2017, it has therefore never come into force.
Two other disputes were subsequently filed (Karnoski c. Trump and Stockman v. Trump), and all three were upheld by lower courts, resulting in preliminary injunctions that ended the ban during the proceedings.
In the meantime, the Trump administration submitted a request – a petition for pre-trial certiorari – to the Supreme Court in November asking it to bypass the federal courts of appeal and immediately take up all three cases and render a decision. this term.
"But pre-trial certiorari applications are not often accepted," writes Amy Howe, a Supreme Court observer writing for Scotusblog in a December 13 ruling. to post.
According to Howe, it was not surprising that the US Solicitor General returned to court in mid-December and suggested to the judges another possibility: let the government impose the ban while lower courts continued.
The government argued that the ban should come into effect immediately because the presence of transgender troops is detrimental to the readiness of the army and its fighting force.
"The administration uses gas lighting," said Aaron Belkin, PhD, director of the Palm Center. Medscape Medical News. "It is the reinstatement of the ban that would harm the army."
"Six former American general surgeons, three former military general surgeons, the American Medical Association, the American Psychological Association and the American Psychiatric Association have confirmed that the grounds invoked by the Department of Defense to reinstate this prohibition is not supported by evidence or scrutiny. " says Belkin in Octoberwhen Brett Kavanaugh was confirmed as the most recent justice.
The Court of Appeal of DC supports the ban
January 4th, US District Court of Appeals for DC Circuit issued an opinion the one who concluded that the lower court had erred in not allowing the 2018 directive – the "Mattis plan" – to go forward.
This policy did not constitute a total ban on transgender people serving in the army, said the judges of the court of appeal. Therefore, they said: "We believe that the public interest militates in favor of the dissolution of the injunction", against the application of the ban.
The case is being remitted to the US federal court for a fresh review of the benefits of the ban and the challenge.
The activists expressed their deep concern over the decision of the Court of Appeal.
"We will continue to fight against this cruel and irrational policy, which only serves to weaken the military and punish transgender service members for their patriotism and service," said Shannon Minter, chief legal officer of NCLR. in a report.
"The court erroneously believes that an implementation plan developed by former Secretary of Defense James Mattis is different from President Trump's initial tweeting policy." The president's tweets and Mattis's ban are the same, "said Lieutenant-General Claudia Kennedy, US (Ret'd), Rear Admiral John Hutson, JAGC, USN (retired), Major General Gale Pollock, CRNA, FACHE, FAAN, American (retired) and Brigadier General Clara Adams-Ender, United States (retired), in a joint declaration issued by the Palm Center.
The retired military officials said that the motive for the ban, according to which allowing transgender people to serve, would harm the cohesion of the unit, "has been discredited by the leaders of the military. Staff, who all said that transgender service was not a problem.
Finally, the American Medical Association, the American Psychiatric Association, the American Psychological Association, the American Psychological Association, the American Psychological Association, six former US Surgeons General and three other former military general surgeons, " said the officers.
"The reason for Mattis's ban and Trump's tweets is the same – political, not military expertise – and the courts should not come back to it," they said.