Trump administration wants Supreme Court to take up transgender military ban now

WASHINGTON — The Trump administration urged the U.S. Supreme Court Friday to immediately take up the legal battle over transgender military service, asking the justices to act even before the issue has gone through the lower courts.

The Supreme Court rarely allows such a move to leapfrog over the usual appeals process, but Solicitor General Noel Francisco said the Obama administration's policy of allowing transgender service poses a threat to military readiness and imposes "an unreasonable burden on the military that is not conducive to military readiness and lethality."

President Donald Trump took the Pentagon by surprise in July 2017 when he said in a series of tweets that the government "will not accept or allow" transgender individuals to serve in any capacity in the U.S. military. Six months later, Defense Secretary James Mattis proposed a modified policy, ultimately approved by the president, that would allow transgender individuals to serve, but only if they did not seek gender transition and agreed to serve "in their biological sex."

The revised plan reversed the policy imposed during the Obama administration, allowing transgender members to serve openly and even to receive sex reassignment surgery. But the Pentagon hoped the Mattis order could prevail against the expected discrimination lawsuits by saying that it was not based merely on status.

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Protests against President Trump's proposed transgender military ban
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Protests against President Trump's proposed transgender military ban
People protest U.S. President Donald Trump's announcement that he plans to reinstate a ban on transgender individuals from serving in any capacity in the U.S. military, in Times Square, in New York City, New York, U.S., July 26, 2017. REUTERS/Carlo Allegri
A participant cries during a protest against U.S. President Donald Trump's announcement that he plans to reinstate a ban on transgender individuals from serving in any capacity in the U.S. military, in Times Square, in New York City, New York, U.S., July 26, 2017. REUTERS/Carlo Allegri
People protest U.S. President Donald Trump's announcement that he plans to reinstate a ban on transgender individuals from serving in any capacity in the U.S. military, in Times Square, in New York City, New York, U.S., July 26, 2017. REUTERS/Carlo Allegri
Transgender activist Tanya Walker speaks at a protest against U.S. President Donald Trump's announcement that he plans to reinstate a ban on transgender individuals from serving in any capacity in the U.S. military, in Times Square, in New York City, New York, U.S., July 26, 2017. REUTERS/Carlo Allegri
People protest U.S. President Donald Trump's announcement that he plans to reinstate a ban on transgender individuals from serving in any capacity in the U.S. military, in Times Square, in New York City, New York, U.S., July 26, 2017. REUTERS/Carlo Allegri
Demonstrators gather to protest U.S. President Donald Trump's announcement that he plans to reinstate a ban on transgender individuals from serving in any capacity in the U.S. military, at the White House in Washington, U.S. July 26, 2017. REUTERS/Jonathan Ernst
A participant dressed as both Russia's President Vladimir Putin and U.S. President Donald Trump attends a protest against Trump's announcement that he plans to reinstate a ban on transgender individuals from serving in any capacity in the U.S. military, in Times Square, in New York City, New York, U.S., July 26, 2017. REUTERS/Carlo Allegri
Demonstrators gather to protest U.S. President Donald Trump's announcement that he plans to reinstate a ban on transgender individuals from serving in any capacity in the U.S. military, at the White House in Washington, U.S. July 26, 2017. REUTERS/Jonathan Ernst
COLUMBUS CIRCLE, NEW YORK, UNITED STATES - 2017/07/29: A group of New Yorkers gathered at Columbus Circle across the Trump International Hotel and Tower New York in Central Park to raise their voices in protest against discrimination towards the LGBT community, in the aftermath of the Trump/Pence regime decision to ban transgender people from serving in the U.S. military. (Photo by Erik McGregor/Pacific Press/LightRocket via Getty Images)
TIMES SQUARE NYC, NEW YORK CITY, NEW YORK, UNITED STATES - 2017/07/26: On July 26, 2017, after a series of tweets by President Donald Trump, which proposed to ban transgender people from military service, thousands of New Yorkers took the streets of in opposition. Thousands of transgender soldiers are currently serving in all branches of the United States Armed forces. (Photo by Michael Nigro/Pacific Press/LightRocket via Getty Images)
TIMES SQUARE NYC, NEW YORK CITY, NEW YORK, UNITED STATES - 2017/07/26: On July 26, 2017, after a series of tweets by President Donald Trump, which proposed to ban transgender people from military service, thousands of New Yorkers took the streets of in opposition. Thousands of transgender soldiers are currently serving in all branches of the United States Armed forces. (Photo by Michael Nigro/Pacific Press/LightRocket via Getty Images)
TIMES SQUARE NYC, NEW YORK CITY, NEW YORK, UNITED STATES - 2017/07/26: On July 26, 2017, after a series of tweets by President Donald Trump, which proposed to ban transgender people from military service, thousands of New Yorkers took the streets of in opposition. Thousands of transgender soldiers are currently serving in all branches of the United States Armed forces. (Photo by Michael Nigro/Pacific Press/LightRocket via Getty Images)
Protesters gather in front of the White House on July 26, 2017, in Washington, DC. Trump announced on July 26 that transgender people may not serve 'in any capacity' in the US military, citing the 'tremendous medical costs and disruption' their presence would cause. / AFP PHOTO / PAUL J. RICHARDS (Photo credit should read PAUL J. RICHARDS/AFP/Getty Images)
NEW YORK, NY - JULY 26: Dozens of protesters gather in Times Square near a military recruitment center to show their anger at President Donald Trump's decision to reinstate a ban on transgender individuals from serving in the military on July 26, 2017 in New York City. Trump citied the 'tremendous medical costs and disruption' for his decision. (Photo by Spencer Platt/Getty Images)
UNITED STATES - JULY 26: Human Rights Campaign supporters hold up signs as the House Democrats along with the LGBT Equality Caucus' Transgender Equality Task Force members hold a press conference outside of the Capitol to call on President Trump to reverse his ban on transgender Americans from serving in the military on Tuesday, July 25, 2017. (Photo By Bill Clark/CQ Roll Call)
Protesters display placards against US President Donald Trump during a demonstration in front of the US Army career center in Times Square, New York, on July 26, 2017. Trump announced on July 26 that transgender people may not serve 'in any capacity' in the US military, citing the 'tremendous medical costs and disruption' their presence would cause. / AFP PHOTO / Jewel SAMAD (Photo credit should read JEWEL SAMAD/AFP/Getty Images)
TIMES SQUARE NYC, NEW YORK CITY, NEW YORK, UNITED STATES - 2017/07/26: On July 26, 2017, after a series of tweets by President Donald Trump, which proposed to ban transgender people from military service, thousands of New Yorkers took the streets of in opposition. Thousands of transgender soldiers are currently serving in all branches of the United States Armed forces. (Photo by Michael Nigro/Pacific Press/LightRocket via Getty Images)
TIMES SQUARE NYC, NEW YORK CITY, NEW YORK, UNITED STATES - 2017/07/26: On July 26, 2017, after a series of tweets by President Donald Trump, which proposed to ban transgender people from military service, thousands of New Yorkers took the streets of in opposition. Thousands of transgender soldiers are currently serving in all branches of the United States Armed forces. (Photo by Michael Nigro/Pacific Press/LightRocket via Getty Images)
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The Mattis policy was immediately challenged, and four federal courts issued orders forbidding the government to enforce it. Federal District Court Judge Marsha Pechman of Seattle said that "discrimination against transgender people clearly is unrelated to their ability to perform and contribute to society." Other judges said the policy was nothing more than a plan to carry out the outright ban on transgender service announced by President Trump.

In urging the Supreme Court to take the case now, the Justice Department said allowing the Obama transgender military service policy to continue would undermine military readiness and unit cohesion. Allowing service members "who retained the anatomy of their biological sex to use the facilities of the preferred gender" would invade the privacy of others. And permitting a biological male who identifies as female to compete against women in training "would pose a serious safety risk and generate perceptions of unfairness."

Civil liberties groups condemned Friday's move by the government.

"It seems the Trump administration can't wait to discriminate," said Peter Renn of Lambda Legal. "There is no valid reason to jump the line now and seek U.S. Supreme Court review before the appellate courts have even ruled on the preliminary issues before them."

Sarah McBride of the Human Rights Campaign said the Trump administration was rushing the process "because they know that every day that transgender people continue to enlist and serve with distinction is another day that the courts and the public see this irrational policy for what it is."

The Supreme Court has agreed only about a dozen times in the past century to take a case so quickly and bypass the federal appeals courts, usually involving a national emergency such as nationwide strikes in the steel and coal industries.

In Friday's filing, the Justice Department said the court has done so in the past "to promptly resolve important and time sensitive disputes," but offered only three examples in the past 66 years.

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