U.S. Asks Supreme Court to Rule on Military Transgender Policy

United States Army

The Solicitor General of the United States, Noel Francisco, recently petitioned the U.S. Supreme Court to take up three cases from around the country where federal district courts have blocked, through the issuance of nationwide injunctions, the application of the Trump Administration's 2018 "Mattis policy" restricting the service of transgender-identified individuals in the military.

The move is unusual in that the typical process for any case filed in the federal courts to reach the Supreme Court requires a decision in a federal district court, followed by an appellate decision from one of the nation's 12 federal courts of appeal, followed by a request to the Supreme Court to hear the case. That typical process can be circumvented "only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice…" The Solicitor General argues that this is such a case.

Francisco rightly observes that if the typical process is followed, the Supreme Court will not be able to hear this urgent case, which involves issues that affect military readiness and unit cohesion, until late 2019 or early 2020, rather than in the current term which ends in June, 2019. Such a delay causes serious problems for the military if the previous policy, developed under the Obama Administration (the "Carter policy"), is allowed to continue.

For example, the military's cost for medical care for transgender-identified personnel has ballooned to approximately 300% of the cost for non-transgender-identified service personnel. Transgender-identified personnel are more apt to be unready for service ("non-deployable") for extended periods of time due to medical treatments and procedures undertaken to supposedly assist with the "transition" to a different "gender." Another issue involves allowing transgender-identified individuals of one biological sex to sleep, shower and share sex-segregated facilities with personnel of a different biological sex. A third issue involves allowing biological men who think they are women, to train (and possibly injure) female personnel who are typically smaller than men.

The Mattis policy is unfairly called a "transgender ban" in the media, but it is not a ban. Like the Carter policy, it allows transgender-identified individuals to serve in the military, but only when they can serve in their biological sex. It also grandfathers any transgender-identified personnel who have entered the military under the Carter policy and relied upon its guidelines.

The case is entitled Trump v. Karnoski. We'll update you when the Supreme Court responds to the Solicitor General's petition.

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