In the briefs filed yesterday, USA solicitor general Noel Francisco explained that the dispute requires the justices' immediate attention because the "prior policy" of allowing transgender individuals to serve "posed too great a risk to military effectiveness and lethality": The government can't afford to keep the old policy in place for a year while it waits for the courts of appeals to issue their rulings and then appeals to the Supreme Court.
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.
It defined such individuals as "those who may require substantial medical treatment, including through medical drugs or surgery". Less than a month later, on July 26, 2017, President Donald Trump announced on Twitter that the us military would not allow transgender individuals to serve "in any capacity".
The judges said the new policy was essentially the same as the original ban, or was merely a plan to implement the original ban, which they had ruled would likely run afoul of the U.S. Constitution's guarantee of equal protection under the law.
Although the Supreme Court nearly always waits for a federal appeals court to render a final decision on a case before the justices will review it, federal law and Supreme Court rule 11 give the justices jurisdiction over a case at any point after it is first docketed with the appellate court.
WH calls SCOTUS to review transgender ban
Francisco has moved aggressively at times to get cases before a Supreme Court that is more solidly conservative with the addition of Justice Brett Kavanaugh. The U.S. Court of Appeals for the District Circuit is scheduled to hear an appeal of the ruling next month.
Other judges said the policy was nothing more than a plan to carry out the outright ban on transgender service announced by President Trump.
The U.S. Court of Appeals for the 9th Circuit has heard arguments on the merits of the case, but has not yet issued an opinion.
"There is absolutely no support for the claim that the ongoing service of transgender people would have any negative effective on the military at all", Judge Colleen Kollar-Kotelly of the US District Court in Washington wrote previous year.
"It seems the Trump administration can't wait to discriminate", said Peter Renn of Lambda Legal.
This is the fourth time in recent months that the Trump administration has tried to bypass the normal courts process. He's declared that gender is only defined as the sex a person was assigned at birth and has since ended protections for transgender workers and prisoners. The District of Columbia federal court likewise refused to lift its identical injunction on August 6 and the Central District of California did the same on September 18. "There is no valid reason to jump the line now and seek US Supreme Court review before the appellate courts have even ruled on the preliminary issues before them".