New Zealand Law Society - Supreme Court rules in favour of Trump’s military transgender ban

Supreme Court rules in favour of Trump’s military transgender ban

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The United States Supreme Court has allowed President Donald Trump to enforce his policy of banning certain transgender people from the military.

The BBC reports the court voted 5-4 to grant a Trump administration request to lift injunctions blocking the policy while challenges continue in lower courts.

Reportedly, the vote followed conservative to liberal leanings.

The order bars those who identify with a gender different from the one assigned at birth from enlisting.

The administration’s policy reversed a 2016 decision by the Obama administration to open the military to transgender service members. It generally prohibits transgender people from military service but makes exceptions for those already serving openly and those willing to serve “in their biological sex”.

In November 2018 the current administration asked the Supreme Court to bypass the usual legal process to ban transgender people from the military service. Normally, the Supreme Court waits to take action until regional appeals courts have ruled.

One nationwide injunction, issued in Maryland remains in place, so the ban does not take effect yet.

Reasoning behind the ban challenged

The international research organisation RAND Corporation has researched the reasoning behind the ban and found that other countries such as Australia, Canada, Israel and the United Kingdom, that allow trans gender people to serve in the military experience few issues.

“The data indicated that there has been no significant effect of openly serving transgender service members on cohesion, operational effectiveness, or readiness,” it says.  

In further research, RAND notes any additional costs would be small as it estimates the number of transgender individuals serving in the active component of the U.S. military at between 1,320 and 6,630 out of a total of about 1.3 million service members.


June 2016: The Department of Defense adopts a policy permitting transgender people to serve in the military after a review that determined there was no valid reason to exclude qualified personnel from military service simply because they are transgender.

July 2017: President Trump vows to reverse the policy, tweeting that the military cannot be burdened with the “tremendous medical costs and disruption” that transgender in the military would entail.

August 9, 2017: The National Centre for Lesbian Rights (NCLR) and Legal Advocates & Defenders (GLAD) filed Doe v Trump to oppose the ban and ask the court to issue a nationwide preliminary injunction to stop it from taking effect while the case is being heard in court.

August 25, 2017: Mr Trump issued a memorandum ordering Defence Secretary James Mattis to submit a “plan for implementing” the ban by February 21, 2018.

March 2018: The Trump administration unveiled a new version of the ban.

“…transgender persons with a history or diagnosis of gender dysphoria — individuals who the policies state may require substantial medical treatment, including medications and surgery — are disqualified from military service except under certain limited circumstances.”

August 2018: Challenges to the ban are successful in the lower courts. District Judge Colleen Kollar-Kotelly denied the administration’s motion to dismiss Doe v Trump. In Judge Kollar-Kotelly’s order she emphasised the importance transgender military service with regard to military readiness.