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A divided Supreme Court on Tuesday allowed President Donald Trump to bar transgender troops from the military while litigation over the policy proceeds.
The justices granted the Trump administration's request to lift a lower-court ruling that had blocked the president's executive order nationwide.
As often happens with emergency requests, the majority did not explain its reasoning. The court's three liberal justices - Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson - said they would have kept the hold on Trump's policy in place.
Trump issued the order to remove transgender troops from the ranks soon after taking office in January, characterizing transgender identity as a "falsehood" that does not comport with the "humility and selflessness required of a service member."
The executive order is one of a series of actions by the administration aimed at rolling back protections for transgender and LGBTQ+ people and targeting transgender athletes. But the court's ruling Tuesday is limited to the military's hiring practices, and the administration emphasized in court filings that the president should be granted great deference when it comes to assembling the nation's armed forces.
The military should not "be forced to maintain a policy that it has determined, in its professional judgment, to be contrary to military readiness and the Nation's interests," Solicitor General D. John Sauer told the justices on behalf of the administration.
In recent years, the Supreme Court has ruled that a landmark federal civil rights law from the 1960s protects gay and transgender workers - a case that was not related to the military. The justices are also expected to decide before the end of June whether states can ban certain gender transition medical treatments for young people.
The court's emergency docket has filled up since Trump returned to office with a flood of filings from the administration, asking the justices to limit or lift lower-court rulings that have blocked many Trump initiatives from taking effect while litigation over their legality continues. The high court has sided with Trump in some of its emergency orders but gone against the administration in others.
Trump's order targeting transgender troops reversed a Biden administration policy that prohibited discrimination based on gender identity and allowed transgender troops to serve openly. The Biden policy, in turn, removed an earlier ban on transgender troops put in place in 2018 during the first Trump administration.
In a 5-4 ruling in 2019, the Supreme Court allowed Trump's earlier ban to take effect while challenges to that policy proceeded. But the high court never addressed the underlying legal questions at issue in those cases.
Transgender troops were first allowed to serve openly in 2016. More than 4,000 service members have been diagnosed with gender dysphoria, according to a senior defense official who spoke on the condition of anonymity under ground rules set by the Trump administration.
Advocates for the troops who challenged the current policy called the Supreme Court's order a "devastating blow to transgender servicemembers who have demonstrated their capabilities and commitment to our nation's defense."
Lambda Legal and the Human Rights Campaign Foundation said the court had "temporarily sanctioned a policy that has nothing to do with military readiness and everything to do with prejudice."
Transgender individuals "meet the same standards and demonstrate the same values as all who serve," the groups said in a joint statement.
Trump's policy from his first term carved out an exception for transgender people already serving, barring only new members of the military who were transgender. The current policy purges current service members and forbids any new transgender people from joining.
While the policy takes effect, lawsuits challenging it will continue to be litigated in federal courts. Eventually the Supreme Court could be asked to rule on whether the policy is constitutional.
Shannon Minter, legal director of the National Center for Lesbian Rights, said the high court's order Tuesday "upended the lives of thousands of service members without even the decency of explaining why" and would result in transgender service members being targeted and forced into an administrative separation process that is usually reserved for misconduct.
"This is a deeply sad day for our country," Minter said.
A Justice Department spokesman said the Supreme Court order "rightly rejected attempts to inject gender ideology into our military at the expense of our fighting capabilities. The Department will continue to fight against desperate attempts to seize control of America's military readiness in service of a radical social agenda."
The lawsuit that prompted the Supreme Court order was filed by gay and transgender rights groups on behalf of seven transgender service members and a prospective member. It claims Trump's ban amounts to unconstitutional discrimination, threatens national security and wastes years of military training.
One service member, Emily "Hawking" Shilling, is a commander with the U.S. Navy. She has served for 19 years, flying 60 combat missions, including in Iraq and Afghanistan. In court documents, Shilling said she and her partner have three children. The ban will leave the family in a financially precarious situation with no housing benefits, health insurance or stable retirement income, she said.
"For nearly a decade, across multiple administrations, thousands of transgender people have openly served in our military with dedication, honor, and distinction," reads a Supreme Court filing by lawyers for the troops. "These servicemembers have sacrificed to serve our country - all the while meeting the same rigorous standards for accession and retention required of every soldier, airman, marine, and sailor serving in our Armed Forces."
A federal judge in Washington state issued a preliminary injunction against the enforcement of the executive order in March, saying the Trump administration had presented no information that transgender troops harmed the operation of the military.
U.S. District Judge Benjamin Settle, a nominee of President George W. Bush, said the government's "unrelenting reliance on deference to military judgment is unjustified in the absence of any evidence supporting ‘the military's' new judgment reflected in the Military Ban."
The Trump administration then appealed to the Supreme Court.
"The Department rationally determined that service by individuals with gender dysphoria would undermine military effectiveness and lethality - consistent with similar, longstanding determinations for a wide range of other medical conditions," Sauer told the justices in a filing.
The case now goes back to the U.S. Court of Appeals for the 9th Circuit, which will hear the Trump administration's appeal of the lower court's ruling.
The Pentagon has ordered each branch of the military to identify service members with gender dysphoria within 30 days and begin removing them from the service within 30 days after that. The order allows exceptions for troops directly supporting "warfighting capabilities."
Troops that obtain a waiver to stay in the military will face additional restrictions, including not being able to access changing rooms, bathrooms and showers for people of the sex they transitioned to. They will also have to meet the physical standards associated with their birth sex.
Two other lawsuits against the transgender troop ban are also being litigated in the courts. U.S. District Judge Ana C. Reyes in D.C. temporarily blocked the policy in March, saying it undermines national security and is probably unconstitutional.
"The cruel irony is that thousands of transgender servicemembers have sacrificed - some risking their lives - to ensure for others the very equal protection rights the Military Ban seeks to deny them," wrote Reyes, a nominee of President Joe Biden.
Her ruling was temporarily blocked in an administrative order from a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit.
(COMMENT, BELOW)