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to Section One | to Arts & Entertainment
posted Friday, January 25, 2019 - Volume 47 Issue 04
SCOTUS ruling on Trans military service members: Lambda Legal vows to fight on
Section One
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SCOTUS ruling on Trans military service members: Lambda Legal vows to fight on

by Mike Andrew - SGN Staff Writer

Lambda Legal said it would continue to fight in US courts to defend the rights of Transgender military service members, in spite of a setback at the US Supreme Court.

'The Supreme Court's decisions today [January 22] are perplexing to say the least: on the one hand denying the Trump administration's premature request for review of lower court rulings before appellate courts have ruled and rebuffing the administration's attempt to skirt established rules; and yet on the other allowing the administration to begin to discriminate, at least for now, as the litigation plays out,' Lambda Legal Counsel Peter Renn said in a statement.

'For more than 30 months, transgender troops have been serving our country openly with valor and distinction, but now the rug has been ripped out from under them, once again. We will redouble our efforts to send this discriminatory ban to the trash heap of history where it belongs.'

Continued litigation makes sense only because of the very limited scope of the Supreme Court's decision.

In a 5-to-4 vote - reflecting the new right-wing majority achieved when Brett Kavanaugh replaced Anthony Kennedy - the high court said that the Trump administration may enforce its ban on Trans people serving in the military pending further court decisions. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented from the majority ruling.

On the other, hand, the court also declined to fast-track two lawsuits, Trump v. Karnoski and Trump v. Stockman, which are still pending in lower courts. Trump administration lawyers had asked the Supreme Court to decide the constitutionality of the Trans ban before the cases had worked their way through the federal judicial system.

The initial federal trial courts had enjoined the administration from enforcing its ban pending final adjudication of the cases - in part because the US district judges hearing the cases believed that the plaintiffs were likely to prevail on the merits of their complaint.

The Supreme Court has now stayed the injunctions in all but one of the pending cases, allowing the Trump administration to enforce its ban on Trans military service people. It did not indicate any view one way or the other on whether the ban is constitutional. In fact, it declined to even consider that issue.

To date, all lower court rulings have favored the Trans plaintiffs. The Supreme Court has not said when or if it will consider appeals in those cases, and it need not do so. If it doesn't, then lower court rulings will remain in place and the ban will be overruled, even though it's currently enforceable.

Lambda Legal is involved because, along with OutServe-SLDN, it filed the lawsuit in one of the cases, Karnoski v. Trump, on behalf of nine individual plaintiffs and three organizational plaintiffs - the HRC, Gender Justice League, and the American Military Partner Association (AMPA). The State of Washington later joined the lawsuit.

Congressional Democrats react
The high court ruling was immediately condemned by congressional Democrats.

Washington Sen. Patty Murray noted the irony of the timing of the court's ruling - one day after the Martin Luther King Day holiday.

'I am deeply disappointed in today's decision,' she said, 'and urge Acting Secretary Shanahan and the Department of Defense not to move forward with this misguided discriminatory ban that would create further uncertainty for our troops and degrade our national security.'

Seattle-area Rep. Adam Smith, now chair of the House Armed Services Committee, also expressed disappointment.

'I am extremely disappointed in the Supreme Court's decision to allow the Trump administration to enforce its discriminatory ban on transgender military service without proper due process in the courts,' he said.

'Anyone who is qualified and willing should be allowed to serve their country openly, without their career being affected by an arbitrary, discriminatory directive from the president. We have fought against this bigoted policy at every step, and we will continue to do so.'

Sen. Tammy Duckworth (D-IL), an Iraq War veteran, also criticized the Supreme Court's decision on Tuesday. She blasted the move 'disheartening' in a series of tweets and urged the high court to make clear 'that this sort of discrimination has no place in our military.'

Rep. Deb Haaland (D-NM) posted a Transgender flag outside her congressional office to protest the Supreme Court ruling. She joins Rep. Jennifer Wexton (D-VA), the aunt of a Transgender child, who has displayed a Transgender flag outside her office since the beginning of her term.

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