SCOTUS Allows Military Ban That Calls Trans People "Dishonorable" To Go Into Effect

The decision was opposed by justices Kagan, Jackson, and Sotomayor.

Photo by Claire Anderson on Unsplash

On Tuesday, the Supreme Court gave the green light for the Trump administration’s ban on transgender military service to take effect—staying lower court rulings that had found the policy blatantly unconstitutional. Those courts had determined the ban violated equal protection guarantees and was driven by anti-transgender animus, not military necessity. The policy brands transgender people as inherently “dishonorable” and “undisciplined” for no reason other than their gender identity. With the high court’s decision, the administration now has license to purge transgender service members—an alarming signal that the Supreme Court may be willing to overlook constitutional protections for trans people in future cases.

Only three justices—Kagan, Jackson, and Sotomayor—dissented from the Supreme Court’s decision to let the Trump administration begin purging transgender service members. The ruling followed the Ninth Circuit’s refusal to stay a lower court decision that had blocked the ban, with the district judge finding it likely unconstitutional and a violation of due process. That judge condemned the policy for imposing “demeaning, cruel, and unsupported badges of infamy” on transgender troops. Nevertheless, the Supreme Court has now cleared the way for the ban to take effect while the case proceeds, granting an expedited hearing on the dubious claim that the presence of transgender people in the military constitutes a national emergency.

Though technically a temporary measure—the decision sends the case back to the Ninth Circuit for full review—the calling it temporary is a distinction without a difference. It grants the military immediate authority to discharge transgender service members, displacing them from their jobs, income, and housing. By the time the Ninth Circuit, and ultimately the Supreme Court, issues a final ruling, the damage will already have been done. Service members will have been removed not for misconduct or performance, but solely for being transgender. While the legal fight continues, and some may still hope for a reversal, the Court’s willingness to greenlight these separations now offers a sobering preview of where it likely stands on the constitutional rights of transgender people—and the likely outcome of the case.

Many legal observers have pointed to this case as one of the most clear-cut opportunities for a neutral court to affirm the constitutional rights of transgender people. That’s because the Trump administration made little effort to conceal the unconstitutional animus driving its executive order. The policy declares that for transgender people, “the adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life.”

The message was unmistakable—and so overtly discriminatory that U.S. District Judge Ana Reyes, in a separate case blocking the policy, described it as “soaked with animus.” “Neither document contains any analysis nor cites any data,” Reyes wrote. “They pronounce that transgender persons are not honorable, truthful, or disciplined—but Defense counsel concedes that these assertions are pure conjecture…. Its language is unabashedly demeaning, its policy stigmatizes transgender persons as inherently unfit, and its conclusions bear no relation to fact… Thus, even if the Court analyzed the Military Ban under rational basis review, it would fail.”

If implemented broadly, the ban will have immediate and damaging consequences for both transgender service members and military readiness across the United States. SPARTA, a leading transgender military advocacy organization, estimates that removing 15,000 transgender service members would result in the loss of an $18 billion capital investment, with the Palm Center projecting an additional $1 billion cost to recruit and train replacements. Notably, up to 73% of these service members are senior enlisted personnel with 12-21 years of experience—expertise that cannot be easily replaced by the U.S. government.

When asked about the potential for a ban when it was first floated in November, Emily Shilling, President of SPARTA and the namesake of the case, stated to Erin In The Morning, “The most immediate impact is that transgender people serve in every theater of the world. If it were a fairly fast-moving ban, you would be pulling these individuals out of their units, leaving critical gaps in skill sets, experience, and leadership positions that you’re just not going to be able to fill with equivalent people anytime soon, especially given the shortfalls in recruiting,”

The case now returns to the Ninth Circuit, which will determine whether the military can legally separate transgender service members—a question with enormous constitutional stakes, even as discharges are expected to begin. Meanwhile, the D.C. Circuit has stayed Judge Reyes’s ruling, allowing the ban to go into effect, though it leaves open the narrow possibility for appeals if separations proceed. In reality, that path is unlikely to succeed in the wake of the Supreme Court’s intervention. The immediate effect of the Court’s decision is clear: the ban can be enforced now. And in the coming days, transgender soldiers are likely to begin facing its devastating consequences firsthand.