Justice Brett Kavanaugh may be joining the Supreme Court just in time to help decide whether President Trump can, at least temporarily, put new restrictions on transgender military service, an advocacy group said on Monday.
A federal appeals court in Portland, Ore., will hear a Trump administration appeal on Wednesday morning asking that a preliminary injunction be lifted so the Pentagon can enforce a policy barring many transgender people from enlisting while the issue is litigated. Four federal lawsuits have been filed and could go to trial sometime next year.
Depending on the outcome of the appeal, the question of whether to lift the injunction and allow the Pentagon to move forward in the meantime could be appealed to the Supreme Court, where Kavanaugh is a new conservative justice after being sworn in over the weekend.
“Justice Brett Kavanaugh’s confirmation creates the possibility that the Supreme Court could allow the Trump administration to reinstate a ban on transgender military service,” according to the Palm Center, which is based in San Francisco.
The think tank has fought to defend an open transgender service policy put in place by the Obama administration and said Monday that a move by the Supreme Court to dissolve the preliminary injunction would create a policy worse than the “Don’t Ask, Don’t Tell” policy once imposed on gay troops.
Defense Secretary Jim Mattis issued a new transgender policy after a lengthy review that found people diagnosed with gender dysphoria suffer from high rates of suicide, anxiety, depression, and substance abuse and that treatment such as hormone therapy and surgery have not been proven to relieve those issues.
Four federal courts have each issued injunctions on Mattis’ transgender policy, which bars anyone diagnosed with gender dysphoria and anyone who has undergone treatment such as hormone therapy or surgery from enlisting in the military.
The courts have so far rejected motions by the Trump administration to remove the injunctions.
That means the Pentagon is blocked from changing the current open-service policy while the four federal lawsuits are being heard in Washington, D.C., Maryland, California, and Washington state.
The appeals hearing on Wednesday is part of the Karnoski v. Trump lawsuit, which was filed last year in Seattle and involves active-duty transgender troops and a prospective recruit. That case could got to trial next year, meaning any final resolution to the policy could still be months into the future.
Trump announced in a series of tweets in July 2017 that transgender troops would no longer be allowed to serve in any capacity. Mattis and the Pentagon then spent months studying the issue and created a policy that bars service by troops who have been diagnosed with gender dysphoria, a common condition among transgender people.
Transgender troops who came out under the Obama administration policy beginning in 2016 are grandfathered and can remain in the military, would continue to receive all the same medical care, and serve in their preferred gender.
About 8,900 troops identify themselves as transgender in a workplace survey and about 937 have been diagnosed with gender dysphoria.