If you’ve been hearing a lot of news in the past couple few days about President Donald Trump expelling transgender individuals from the military, that’s because on Tuesday, the Supreme Court set up him up to do so. They issued a ruling that would allow the Trump administration to enforce a Department of Defense policy that prohibits transgender individuals from serving in the U.S. military. This marks another chapter in the ongoing saga of transgender military service rights. Let’s catch up on how we got here before we get into the SCOTUS order.
Trump v. Transgender Troops
As we recently reported, Trump has had gender equality in his crosshairs for a while. Earlier this year, he reversed a policy from the Biden administration that permitted transgender troops to serve openly.
Trump directed his new Secretary of Defense Pete Hegseth to enforce a ban targeting individuals diagnosed with gender dysphoria — a condition reflecting distress between assigned sex and gender identity. Trump’s Department of Defense argues that medical and mental health constraints associated with gender dysphoria are incompatible with military standards. But seven current transgender servicemembers led by plaintiff Commander Emily Shilling challenged the ban in court.
Earlier this month, a federal district judge in Washington State sided with the transgender troops, deeming the ban unconstitutional under equal protection principles. Earlier, the same judge had granted the transgender plaintiffs an emergency stay of the ban. The Trump admin appealed the stay to the Ninth Circuit, but the judges denied its request to freeze the district judge’s order, so the government turned to the U.S. Supreme court to intervene.
SCOTUS’s Shadow Docket Move
On Tuesday, SCOTUS issued a brief, unsigned order undoing Judge Settle’s stay and renewing Trump’s ban — a decision that did not include any reasoning or explanation. The ruling permits the Trump administration to prohibit the enlistment of transgender people and expel those currently serving. The order overturned not only Judge Settle’s order, but also similar injunctions throughout the country that blocked the policy, enabling the administration to implement the ban at a national level. All three liberal justices dissented from the decision.
SCOTUS did not rule that Trump’s ban is constitutional; that issue is still up before the Ninth Circuit. SCOTUS merely said that the ban can remain in place while litigation continues at lower courts regarding the question of whether or not the ban is constitutional. But even though the decision isn’t “final,” it has significant implications.
Typically, Supreme Court decisions (especially those affecting fundamental rights and involving potentially discriminatory policies) are accompanied by detailed reasoning. The lack of stated reasoning makes it difficult to understand the legal basis for the decision. What’s more, SCOTUS’s decision seems to completely disregard Judge Settle’s arguments and evidence for finding the ban unconstitutional and implementing his stay.
Hegseth Goes Whole Hog
The effect of the ruling will be the discharge of thousands of transgender service members from the military.
In the wake of the Supreme Court’s decision to reinstate the military’s transgender ban pending litigation, Secretary of Defense Pete Hegseth is swiftly taking advantage of the green light. The same day the ruling was handed down from SCOTUS, he quickly posted on X, “No More Trans @ DoD.” Also on the same day, Hegseth gave a keynote address in which he announced: "We are leaving wokeness and weakness behind. No more pronouns. No more climate change obsession. No more emergency vaccine mandates. No more dudes in dresses, we're done with that sh**.” His statements were met with cheering from the crowd.
On Thursday, Hegseth issued a memo directed to leaders at the Pentagon and DoD. In it, he emphasized that “expressing a false 'gender identity' divergent from an individual's sex cannot satisfy the rigorous standards necessary for Military Service.” He singled out those with a diagnosis or history of gender dysphoria, saying that military service by such individuals is “not clearly consistent with the interests of national security.”
In light of SCOTUS’s decision Tuesday, Hegseth said, several policies from February and March that provided guidance on “military excellence and readiness” by excluding transgender troops are now back in effect. Service members with gender dysphoria can choose to leave the military voluntarily. They can apply to receive severance pay, but Hegseth made no promises. Deadlines for voluntary separation are June 6 for active members and July 7 for reserve members. After the voluntary separation window closes, the military will start involuntary separation processes for those affected.
Uncertain Future for Trans Service Members
In short, transgender troops who don’t resign will be forced out, potentially losing access to veterans' benefits and facing a stain on their record due to "involuntary separation." But the matter is far from settled. The Ninth Circuit is still mulling over the merits of the case that’s been appealed to them, so we’ll have to wait and see what they say. But one thing does seem certain: the case will eventually go to the Supreme Court, which will have to issue a ruling on the merits sooner or later.
Related Resources:
- Seeing Crimson, Harvard Sues Trump Administration Over Billions in Threatened Cuts to Research Grants (FindLaw's Federal Courts)
- New Lawsuit Challenges Transgender Military Ban (FindLaw's Federal Courts)
- Trump Invokes Alien Enemies Act to Deport Venezuelan Nationals (FindLaw's Law and Daily Life)
