The Trump administration won a provisional victory on Tuesday when the U.S. Supreme Court issued a brief, unsigned order temporarily allowing the White House’s ban on transgender people serving in the military to take effect as the case moves through the courts.
The vote was 5 to 4. Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan dissented.
The policy, announced on Twitter by President Trump and refined by the defense secretary at the time, Jim Mattis, generally prohibits people identifying with a gender different from their biological sex from military service. It makes exceptions for several hundred transgender people already serving openly and for those willing to serve “in their biological sex.”
The issue reached the nation’s highest court after several judges across the country issued injunctions blocking the policy from moving forward.
Two such injunctions were stayed on Tuesday by the Supreme Court’s order — a move Solicitor General Noel J. Francisco, arguing on behalf of the administration, said was necessary due to an increase in opposition from the lower courts.
“It is with great reluctance that we seek such emergency relief in this court,” Mr. Francisco wrote. “Unfortunately, this case is part of a growing trend in which federal district courts, at the behest of particular plaintiffs, have issued nationwide injunctions, typically on a preliminary basis, against major policy initiatives.”
“Such injunctions previously were rare, but in recent years they have become routine,” he wrote. “In less than two years, federal courts have issued 25 of them, blocking a wide range of significant policies involving national security, national defense, immigration and domestic issues.”
Attorneys for military members challenging the policy argued against allowing the ban to be implemented while the issue is being fleshed out in court.
“Transgender people have been serving openly in all branches of the United States military since June 2016, including on active duty in combat zones,” their brief said. “Transgender individuals have been permitted to enlist in the military since January 2018.”
“The government has presented no evidence that their doing so harms military readiness, effectiveness or lethality,” the brief said.