Supreme Court Stays Injunctions in Trans Ban Case: What Happens Now?

This morning, the Supreme Court granted stays of two district court preliminary injunctions in Trump v. Karnoski and Trump v. Stockman, which had blocked implementation of the Trump administration’s ban on military service by transgender people. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan would have denied the stay. The court did not grant certiorari before judgment in the cases, as the administration had requested, but instead will allow the cases to continue making their way through the normal appellate process. The U.S. Court of Appeals for the Ninth Circuit heard oral argument in Karnoski on Oct. 10, 2018 but has not yet issued its ruling. That court has held the government’s appeal of the preliminary injunction in Stockman, which is also before the Ninth Circuit, in abeyance pending its decision in Karnoski.

Previously, on Jan. 4, the U.S. Court of Appeals for the D.C. Circuit lifted the preliminary injunction issued by the district court in Doe 2 v. Shanahan, concluding that it was clear error for the district court to “to say there was no significant change with respect to at least two aspects of the policy recommended by Secretary of Defense James Mattis in February 2018 and approved by the President in March 2018” and to find “that the Mattis Plan was the equivalent of a blanket ban on transgender service.” Further background on these cases is available here and here.

One preliminary injunction does remain in place in Stone v. Trump, currently being litigated in the district court in Maryland. However, that preliminary injunction relates to the original ban issued in August 2017, not the revised “Mattis plan” issued in March 2018. As in the other three cases, the government moved to dissolve the Stone preliminary injunction in March on the ground that the new policy cured the constitutional problems with the original ban identified by the courts. The district court has not yet ruled on the motion to dissolve.

The effect of this last remaining preliminary injunction is unclear—whether it singlehandedly continues to prohibit implementation of the Mattis policy despite the stays granted in Karnoski and Stockman and the D.C. Circuit’s decision, or is instead effectively irrelevant because the Mattis policy, not the original policy, is what the administration now seeks to implement. In any event, the government is likely to seek an immediate stay in the district court in light of the Supreme Court’s decision. When granted, a stay in Stone would allow the administration to implement the exclusionary policy pending final resolution of the cases on the merits.