Moving the issue of transgender individuals’ right to join the military closer to the Supreme Court, two federal appeals courts this week rejected the Trump Administration’s effort to delay enlistments beyond January 1.
Because there are only nine days remaining before lower court rulings require the military to begin accepting recruits who are transgender, the Administration is more likely to move on to the Supreme Court rather than seek further review in one or both of those appeals courts.
The U.S. Court of Appeals for the District of Columbia, in a detailed order issued Thursday, said the Administration is not likely to win in court when a final decision is made on its main argument that President Trump had full authority to decide to impose a flat ban on transgender recruits. The President’s ban also was broader than enlistment, ordering the discharge of all transgender individuals already serving in the armed forces. That, too, was blocked by a federal trial judge, and the Administration did not ask for delay of that part of the controversy.
One day before the D.C. Circuit refused to put off transgender enlistments next month, the U.S. Court of Appeals for the Fourth Circuit did so in a case that originated in Maryland. The Fourth Circuit Court issued a brief order, without explanation. The practical effect, though, was the same as the more extensive order issued by the D.C. Circuit.
Among other arguments the government has made for delay of enlistments was the claim that Defense Secretary James Maddis had authority, entirely on his own, to postpone the beginning of enlistments. The D.C. Circuit said that Maddis has no such independent authority, because he can only do what the President has directed him to do as the head of the Executive Branch.
If, as is expected, the Administration now moves the case on to the Supreme Court, it could pose the first test of the Justices’ view of transgender rights. The Court had agreed last term to rule on whether federal civil rights law protects transgender individuals from discrimination, that case ended without a ruling.
The Justices now have on their docket a new case seeking to raise that same civil rights law question – an appeal filed by the Kenosha (Wis.) Unifed School District’s board of education. That might also have tested the Justices’ views on transgender rights, but the lawyer for the transgender student involved in that case notified the Justices in a letter last Monday that the two sides are likely to settle the case out of court.
The letter said that lawyers for the school board and for the youth involved – Ashton Whitaker – “are in advanced settlement negotiations and expect a final resolution of this case in the near future.” The youth’s lawyer thus asked for a 30-day extension of the deadline for filing a formal response to the school board’s appeal; that response currently would be due next Wednesday.
If a case that is on the Court’s docket is settled before the case develops in full, the Justices routinely dismiss the case.
The two cases that have reached the Court on transgender rights of students have involved a federal civil rights law that bans discrimination based on sex. In both cases, lower courts had ruled that the law extends to protection against discrimination based on gender identity.
The controversy over President Trump’s move to ban transgender people from joining or serving in the nation’s military involves constitutional claims by the challengers – claims that the ban violates the Constitution’s guarantee of legal equality for groups that have been the targets historically of discrimination.
At this point, the only issue that the two appeals courts have decided is that they will not delay the January 1 date for the opening of enlistment by transgender recruits. The government, though, could ask the Supreme Court to grant review directly of the two decisions by federal trial courts that the Trump ban probably will be struck down when a full trial is held.