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Trump admin asks Supreme Court to speed transgender troops case

November 23, 2018

The Trump administration asked the Supreme Court Friday to step in and rule that a policy prohibiting transgender troops from serving in the military is legal, seeking to short-circuit lower courts that have been skeptical about the ban.

Solicitor General Noel Francisco said the administration carefully thought out its policy and has decided that limits on transgender troops are in the best interests of national security and the courts should defer to that judgment.

While three district courts have blocked the policy, no circuit appeals court has ruled yet. Mr. Francisco, though, said the administration doesn’t want to wait for those rulings, saying the matter is urgent and should be heard and decided by the Supreme Court before its current term ends in June.

“It involves an issue of imperative public importance: the authority of the U.S. military to determine who may serve in the nation’s armed forces,” Mr. Francisco wrote.

Transgender troops have been controversial for both the Trump and Obama administrations.

In 2016, then-Defense Secretary Ashton B. Carter reversed a longstanding ban and said transgender individuals could serve openly in the military and troops looking to transition could have that care paid for, and would be allowed to remain in service.

President Trump announced via Twitter last year that he was canceling that policy, spurring a flurry of legal action.

Eventually new Defense Secretary James Mattis issued a new policy tied specifically to a history of gender dysphoria, imposing a general disqualification on troops serving with that diagnosis.

Mr. Francisco, the government’s chief courtroom lawyer, said Mr. Mattis has made a reasoned judgment about military readiness and performance and the courts must give that deference.

The high court rarely intervenes in cases before they have gone through the circuit courts.

Mr. Francisco tried the same tactic, known as “certiorari before judgment,” on several DACA-related immigration cases earlier this year. The justices declined at that point, saying they expected the lower courts could move quickly.

Mr. Francisco renewed the request this month.

One of the appeals courts hearing the DACA cases did, just days later, issue its ruling finding against the Trump administration and likely giving the government a more concrete avenue of appeal.

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