Supreme Court upholds Trump's ban on transgender military members while appeals continue
ARI SHAPIRO, HOST:
The U.S. Supreme Court today allowed the Trump administration to begin carrying out its ban on transgender military service members, at least for now. To explain, NPR legal affairs correspondent Nina Totenberg is here in the studio. Hi, Nina.
NINA TOTENBERG, BYLINE: Hi there, Ari.
SHAPIRO: President Trump has been trying to ban transgender troops in the military since his first term in office. What's the difference between then and now?
TOTENBERG: Well, in the first term, he partially succeeded, but the ban was reversed by President Biden, only to be put back in place by Trump after he took office for a second term. This new order mimics the Trump order from the first administration, and it appears to strengthen it as well because it bars transgender individuals from enlisting, and it also bars - allows for the discharging of active-duty transgender service members as well.
SHAPIRO: So what did the Supreme Court do today?
TOTENBERG: In a one-paragraph unsigned order, the justices revived the ban, which had been temporarily blocked by the lower courts. The court's three liberals, Justices Kagan, Sotomayor and Jackson, noted their dissents and would have barred the administration from putting the ban in place while the case continues to be litigated in the lower courts. And so the case now goes back to the 9th Circuit Court of Appeals for the Trump policy to be reviewed.
SHAPIRO: There's been so much legal ping-ponging in this case, going as far back as 2016 when the Obama administration first allowed openly trans individuals to serve in the military. Explain how this current policy is different.
TOTENBERG: The Obama policy was reversed by Trump in 2017, followed by new rules issued by then-Defense Secretary James Mattis. The Mattis rules actually allowed exceptions to the ban for active service members previously diagnosed with gender dysphoria. But the new policy, the Trump 2 policy, is significantly tougher because it bars from the military anyone with gender dysphoria, a diagnosis of gender dysphoria, and that would be basically all transgender individuals.
SHAPIRO: So where does this leave us now?
TOTENBERG: The 9th Circuit Court of Appeals will take a whack at deciding the issue, and that decision can be appealed to the Supreme Court, though the ban is likely to remain in place during the appellate process.
SHAPIRO: And so assuming that this case ultimately does reach the Supreme Court again later, what are the chances that the justices will ultimately rule against the Trump transgender ban in the military?
TOTENBERG: Probably slim to none. The fact that - is that the Supreme Court, even on a temporary basis, has allowed the Trump administration to proceed with carrying out the ban, and that's a pretty strong indicator that the administration is very likely to prevail in the long run.
SHAPIRO: How many transgender individuals are in the military right now under the policy that allowed them to enlist and serve?
TOTENBERG: The Obama policy was reversed by Trump in 2017, followed by new rules issued by then-Defense Secretary James Mattis. The Mattis rules allowed exceptions to the ban for active service members previously diagnosed with gender dysphoria. But the new policy, the Trump 2 policy, is significantly tougher because it bars from the military anyone with a gender dysphoria diagnosis. And while that might not be everyone, it's most trans individuals.
SHAPIRO: And what can you tell us about the plaintiffs behind this challenge?
TOTENBERG: The challenge to the ban was brought by a group of current and aspiring transgender service members, including lead plaintiff Emily Shilling, a Navy pilot who's flown more than 60 combat missions over her nearly two decades of military service. Ruling in their favor, Judge Benjamin Settle in Washington state, who is a George W. Bush appointee, concluded that the government's classification of gender dysphoria as a disqualifying medical condition was essentially a ruse motivated by hostility towards transgender people.
SHAPIRO: We've described how long a legal journey this has been. When do you expect it might finally conclude?
TOTENBERG: Well, I would think that the case will be back at the Supreme Court next term for a final ruling, regardless of who wins in the 9th Circuit.
SHAPIRO: That is NPR legal affairs correspondent Nina Totenberg. Thank you, Nina.
TOTENBERG: Thank you, Ari.
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