Although litigation against the ban are continuing, President Trump has asked the Supreme Court to let the Pentagon implement it immediately in order to prevent transgender persons from serving in the military.
Based on their findings that Trump’s policy shift was likely unlawful due to its discriminatory motivations and lack of legitimate military need, two federal courts have banned the administration from dismissing any transgender personnel. At the moment, only the decision of the judge in Tacoma, Washington, stands.
U.S. District Judge Benjamin Settle overstepped his jurisdiction, according to Solicitor General John Sauer’s emergency appeal filed with the Supreme Court on Thursday. Courts should show great deference to the Department of Defense’s “professional military judgments” that transgender personnel pose hazards to military preparedness, and his finding “cannot be squared with that,” Sauer said.
“Constitutionally, the 2025 policy’s approach to gender transition cannot be questioned by courts,” Sauer further stated.
With a 5-4 split in 2019, the Supreme Court allowed the first Trump administration to move forward with a more limited ban that aimed to exclude transgender individuals who have transitioned from one gender to another from serving in the military, as well as those who were reluctant to serve “in their biological sex.”
Most transgender persons are now able to openly serve in the military thanks to President Joe Biden, who repealed the restriction. However, Trump quickly reversed Biden’s policy and reinstated an even more stringent prohibition by an executive order after becoming office again.
The people contesting the ban were given until May 1 to respond to the administration’s appeal by Justice Elena Kagan, who first handles emergency challenges stemming from Washington state.
Settle was appointed by George W. Bush. Another judge who prevented Trump from enforcing the ban is Ana Reyes, a District Judge from Washington, D.C., who was appointed by Biden. In their rulings, the two justices criticized the Trump administration for using skewed statistics to back the ban and for ignoring the fact that transgender service members have consistently performed at or beyond military expectations.
The two justices did acknowledge that the military has a lot of discretion in determining what constitutes a “ready,” “lethal,” or “cohesive” unit, but they stressed that the Pentagon still needs to follow constitutional limits, which Trump’s policy had violated.
Because the D.C. Circuit Court of Appeals temporarily blocked Reyes’ order while the appeals court considers the matter further, only Settle’s ruling is presently in force.
While lower court proceedings continue, Sauer requested that the Supreme Court delay Settle’s decision so that the ban might go into force.
This is only the most recent expedited case that the Trump administration has filed with the Supreme Court in its pursuit of resolving urgent concerns. Two cases involving deportations to El Salvador, Trump’s attempt to remove board members of independent federal agencies, and his executive order ending the guarantee of birthright citizenship have all been brought before the high court in recent weeks in a bid for emergency intervention by the Trump administration.
Sauer raises concerns about the countrywide scope of the injunction that Settle issued in the transgender military case in his brief. The Trump administration is claiming that it should be confined to the eight servicemembers who brought that complaint in the event that the high court is inclined to leave any part of it in place.