Editor’s Note: This story was updated May 8 after the Pentagon issued a new memo.
The Supreme Court’s May 6 decision to grant the Trump administration’s request to block a lower court’s injunction means the Defense Department can resume separating transgender service members under a directive issued in February.
In a May 8 memo, Defense Secretary Pete Hegseth directed the military services to reinstate policies to place transgender troops on administrative leave, recall or cancel deployments, cancel transition-related medical care, and require transgender troops to adhere to the dress, grooming, and physical fitness standards of their sex at birth. DOD can also reinstate a hold on transgender recruits shipping to basic military training.
Voluntary separations for Active-Duty transgender service members will be allowed until June 6, and for Reserve members until July 7. After that, the memo directs services to “initiate involuntary separation processes.”
Yet two lawsuits could still stand in the way.
The administration appealed to the Supreme Court after the U.S. Court of Appeals for the Ninth Circuit denied its requests to stay an injunction imposed March 27 by federal district court judge Benjamin Settle. The Ninth Circuit must still rule on the government’s appeal of the injunction itself, legal experts said, a process that could take weeks or months and which can also be appealed to the Supreme Court.
Transgender advocates said removing the injunction allows the administration to act before the legality of its policy is determined.
“The whole purpose of a preliminary injunction is to preserve the status quo while the case proceeds,” said Shannon Minter, the legal director at the National Center for Lesbian Rights and one of the lead attorneys representing transgender troops and recruits in a similar case in Washington D.C. “The court just turned that upside down.”
But what happens next remains unclear.
In granting the preliminary injunction in the Ninth Circuit case, Shilling v. Trump, Settle—who was appointed to the bench by President George W. Bush—wrote that “none of the government’s data supports its conclusion that banning transgender persons from serving is substantially related to achieving military readiness.”
A second case, Talbott vs. USA, is playing out in parallel. In that case, the D.C. Circuit Court of Appeals granted an administrative stay on an injunction ordered by a lower court, but only on condition that DOD not start discharging transgender service members while the court continues to review the government’s request for an emergency stay. The decision is still pending.
It is difficult to predict how the circuit court will rule. Supreme Court can set precedent that lower courts follow, but that usually comes in full opinions. The order, like most from the court, was brief. Multiple lawyers, including Sasha Buchert, a senior attorney representing transgender recruits and service members in the case, said it is difficult to speculate on the outcome.