Two major federal actions against transgender rights in the US

Two major federal actions against transgender rights in the US - Nov. 23, 2018

On Friday, Nov. 23, 2018, the Trump administration made two major moves against transgender rights.

Proposed U.S. ban on transgender soldiers may jump over appeals court and go directly to Supreme Court

On Friday, the administration "asked the Supreme Court to bypass the usual legal process to take on...President Trump’s decision to ban transgender people from military service." (Washington Post, Nov. 23, 2018) Trump proposed the ban in July 2017 via Twitter. He ordered Secretary of Defense Jim Mattis to develop a plan for implementing this ban, which Mattis did. The ban was challenged, however, in part on the basis that Trump's directive was groundless ("the result of discrimination, rather than a study of how allowing transgender personnel affects the military"). Jennifer Levi of GLAD said that "the open service policy that was thoroughly vetted by the military itself and has been in place now for more than two years. Lower courts upheld those challenges. Trump administration "Solicitor General Noel J. Francisco asked the justices to consolidate the challenges to the ban," the Washington Post article said, "and rule on the issue in its current term."

"The Trump administration has taken an aggressive posture when lower courts have ruled against it on important issues. It has asked the Supreme Court — with varying degrees of success — to accept the cases before they have run through the normal appeals process. ... The effort has drawn criticism from those who say such requests puts the Supreme Court in position to be seen as doing the administration’s bidding."

The New York Times reported the same day that "The Supreme Court does not ordinarily intercede until at least one appeals court has considered an issue, and it typically awaits a disagreement among appeals courts before adding a case to its docket." The ban on transgender soldiers has not yet been ruled on in an appeals court, although arguments have already been heard in the Ninth Circuit in San Francisco which has not issued a ruling yet, and another appeal is scheduled to be heard in the District of Columbia Circuit next month. Cases from federal trial court may jump the line, without being first heard by an appeals court, and go directly to the Supreme Court, if the case is shown to be of "imperative public importance as to...require immediate determination in this court.” Solicitor General Francisco claimed in his brief that the ban on transgender soldiers indeed meets that standard. Joshua Matz, a lawyer who filed an amicus brief for challengers, wrote: “Trump’s lawyers fail to understand that the government is not entitled to play leapfrog whenever it loses in federal court.”

Analysis:

Masha Gessen wrote in her 2020 book Surviving Autocracy that many of Trump's pronouncements were "promising to shield Americans from the strange, the unknown, the unpredictable. Queers can serve as convenient shorthand." His order-by-tweet "juxtaposed the military — the symbol of Americans' security — with transgender people, who make so many Americans feel so anxious."

Detailed guidance about the rights of transgender federal employees is removed from the Office of Personnel Management

Also on Friday, it was noticed that information had been removed from the Office of Personnel Management's website sometime earlier in the week. The Office of Personnel Management oversees all federal employees. The website "still state[s] that discrimination on the basis of gender identity is prohibited — consistent with an executive order President Obama issued that is still in effect." However, all the previous detail, "ensuring that trans workers could dress according to their gender identity, that they were called by their preferred names and pronouns, and that they were allowed to use restrooms and locker rooms consistent with their gender identity," is gone, unannounced, according to an article in ThinkProgress.

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